279C.107 Public
disclosure of contents of proposals for architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services;
treatment of trade secrets and confidential information

279C.100
Definitions for ORS 279C.100 to 279C.125. As used in ORS 279C.100 to
279C.125:

(1)
“Architect” has the meaning given that term in ORS 671.010.

(2)
“Architectural, engineering, photogrammetric mapping, transportation planning
or land surveying services” means professional services that are required to be
performed by an architect, engineer, photogrammetrist, transportation planner
or land surveyor.

(3)
“Engineer” means a person who is registered and holds a valid certificate in
the practice of engineering in the State of Oregon, as provided under ORS
672.002 to 672.325, and includes all terms listed in ORS 672.002 (2).

(4)
“Land surveyor” means a person who is registered and holds a valid certificate
in the practice of land surveying in the State of Oregon, as provided under ORS
672.002 to 672.325, and includes all terms listed in ORS 672.002 (5).

(5)
“Personal services” means the services of a person or persons that are
designated by a state contracting agency with procurement authority under ORS
279A.050 or a local contracting agency as personal services. “Personal services”
includes architectural, engineering, photogrammetric mapping, transportation
planning or land surveying services procured under ORS 279C.105 or 279C.110 and
related services procured under ORS 279C.120.

(6)
“Photogrammetric mapping” has the meaning given that term in ORS 672.002.

(7)
“Photogrammetrist” has the meaning given that term in ORS 672.002.

279C.105
Contracts for architectural, engineering, photogrammetric mapping,
transportation planning or land surveying and related services; procedures. (1) Except as
provided in ORS 279A.140, a contracting agency may enter into a contract for
architectural, engineering, photogrammetric mapping, transportation planning or
land surveying services and related services. The Oregon Department of Administrative
Services shall enter into a contract for architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services and
related services on behalf of a state contracting agency that is subject to ORS
279A.140. The provisions of this section do not relieve the contracting agency
of the duty to comply with ORS 279A.140, other law applicable to the state
contracting agency or applicable city or county charter provisions. A
contracting agency that is authorized to enter into a contract for
architectural, engineering, photogrammetric mapping, transportation planning or
land surveying services and related services shall adopt procedures to screen
and select persons to perform architectural, engineering, photogrammetric
mapping, transportation planning or land surveying services and related
services under ORS 279C.110 or 279C.120.

(2)
A state contracting agency with procurement authority under ORS 279A.050 or a
local contract review board by ordinance, resolution, administrative rule or
other regulation may, consistent with the provisions of ORS 279C.100 to
279C.125, designate certain personal services contracts or classes of personal
service contracts as contracts for architectural, engineering, photogrammetric
mapping, transportation planning or land surveying services or related
services. [2003 c.794 §90; 2005 c.103 §11; 2011 c.458 §2]

279C.107
Public disclosure of contents of proposals for architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services;
treatment of trade secrets and confidential information. (1)
Notwithstanding the public records law, ORS 192.410 to 192.505, if a
contracting agency solicits a contract for architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services or
related services by a competitive proposal:

(a)
The contracting agency may open proposals so as to avoid disclosing contents to
competing proposers during, when applicable, the process of negotiation.

(b)
The contracting agency need not open proposals for public inspection until
after the contracting agency executes a contract.

(2)
Notwithstanding any requirement to open proposals to public inspection after
the contracting agency executes a contract, a contracting agency shall withhold
from disclosure to the public trade secrets, as defined in ORS 192.501, and
information submitted to a public body in confidence, as described in ORS
192.502, that are contained in a proposal. Opening a proposal at a public
meeting, as defined in ORS 192.610, does not make the contents of the proposal
subject to disclosure, regardless of whether the public body that opens the
proposal fails to give notice of or provide for an executive session for the
purpose of opening proposals. If a request for proposals is canceled after
proposals are received, the contracting agency shall, subject to ORS 192.501
and 192.502, return a proposal and all copies of the proposal to the proposer
that made the proposal. The contracting agency shall keep a list of returned
proposals in the file for the solicitation. [2007 c.764 §41; 2011 c.458 §3]

279C.110
Selection procedure for consultants to provide services; compensation;
applicability.
(1) A contracting agency shall select consultants to provide architectural,
engineering, photogrammetric mapping, transportation planning or land surveying
services on the basis of the consultant’s qualifications for the type of
professional service required. A contracting agency may solicit or use pricing
policies and proposals or other pricing information, including the number of
hours proposed for the service required, expenses, hourly rates and overhead,
to determine consultant compensation only after the contracting agency has
selected a candidate pursuant to subsection (2) of this section.

(2)
Subject to the requirements of subsection (1) of this section, the procedures
that a contracting agency creates to screen and select consultants and to
select a candidate under this section are at the contracting agency’s sole
discretion. The contracting agency may adjust the procedures to accommodate the
contracting agency’s scope, schedule or objectives for a particular project if
the estimated cost of the architectural, engineering, photogrammetric mapping,
transportation planning or land surveying services for the project does not
exceed $250,000.

(3)
A contracting agency’s screening and selection procedures under this section,
regardless of the estimated cost of the architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services for
a project, may include considering each candidate’s:

(a)
Specialized experience, capabilities and technical competence, which the
candidate may demonstrate with the candidate’s proposed approach and
methodology to meet the project requirements;

(b)
Resources committed to perform the work and the proportion of the time that the
candidate’s staff would spend on the project, including time for specialized
services, within the applicable time limits;

(c)
Record of past performance, including but not limited to price and cost data
from previous projects, quality of work, ability to meet schedules, cost
control and contract administration;

(4)
If the screening and selection procedures a contracting agency creates under
subsection (2) of this section result in the contracting agency’s determination
that two or more candidates are equally qualified, the contracting agency may
select a candidate through any process the contracting agency adopts that is
not based on the candidate’s pricing policies, proposals or other pricing
information.

(5)
The contracting agency and the selected candidate shall mutually discuss and
refine the scope of services for the project and shall negotiate conditions,
including but not limited to compensation level and performance schedule, based
on the scope of services. The compensation level paid must be reasonable and
fair to the contracting agency as determined solely by the contracting agency.
Authority to negotiate a contract under this section does not supersede any
provision of ORS 279A.140 or 279C.520.

(6)
If the contracting agency and the selected candidate are unable for any reason
to negotiate a contract at a compensation level that is reasonable and fair to
the contracting agency, the contracting agency shall, either orally or in
writing, formally terminate negotiations with the selected candidate. The
contracting agency may then negotiate with the next most qualified candidate.
The negotiation process may continue in this manner through successive
candidates until an agreement is reached or the contracting agency terminates
the consultant contracting process.

(7)
It is the goal of this state to promote a sustainable economy in the rural
areas of the state. In order to monitor progress toward this goal, a state
contracting agency shall keep a record of the locations in which architectural,
engineering, photogrammetric mapping, transportation planning or land surveying
services contracts and related services contracts are performed throughout the
state, the locations of the selected consultants and the direct expenses on
each contract. This record must include the total number of contracts awarded
to each consultant firm over a 10-year period. The record of direct expenses
must include all personnel travel expenses as a separate and identifiable
expense on the contract. Upon request, the state contracting agency shall make
these records available to the public.

(8)
Notwithstanding the provisions of subsection (1) of this section, a contracting
agency may directly appoint a consultant if the estimated cost of the architectural,
engineering, photogrammetric mapping, transportation planning or land surveying
services for the project does not exceed $100,000.

279C.115
Direct contracts for services of consultants. (1) As used in this section, “consultant”
means an architect, engineer, photogrammetrist, transportation planner or land
surveyor.

(2)
A contracting agency may enter into a contract for architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services or
related services directly with a consultant if the project described in the
contract consists of work that has been substantially described, planned or
otherwise previously studied or rendered in an earlier contract with the
consultant that was awarded under rules adopted under ORS 279A.065 and the new
contract is a continuation of the project.

(3)
A contracting agency may adopt criteria for determining when this section
applies to a contract for architectural, engineering, photogrammetric mapping,
transportation planning or land surveying services or related services. [2003
c.794 §94; 2011 c.458 §5]

(a)
In accordance with screening and selection procedures adopted under ORS
279C.105;

(b)
On the basis of the qualifications of the consultants for the types of related
services required, under the requirements of ORS 279C.110; or

(c)
On the basis of price competition, price and performance evaluations, an
evaluation of the capabilities of bidders to perform the needed related
services or an evaluation of the capabilities of the bidders to perform the
needed related services followed by negotiations between the parties on the
price for those related services.

(2)
Subject to the requirements of subsection (1) of this section, the procedures
that a contracting agency adopts for the screening and selection of consultants
and the selection of a candidate under this section is within the sole
discretion of the contracting agency and may be adjusted to accommodate the
contracting agency’s scope, schedule and budget objectives for a particular
project. Adjustments to accommodate a contracting agency’s objectives may
include provision for the direct appointment of a consultant if the value of
the project does not exceed a threshold amount as determined by the contracting
agency. [2003 c.794 §95]

279C.125
Architectural, engineering, photogrammetric mapping, transportation planning
and land surveying services selection process for local public improvements
procured through state agency; rules. (1) The Department of Transportation,
the Oregon Department of Administrative Services or any other state contracting
agency shall adopt rules establishing a two-tiered selection process for
contracts with architects, engineers, photogrammetrists, transportation
planners and land surveyors to perform personal services contracts. The
selection process shall apply only if:

(a)
A public improvement is owned and maintained by a local government; and

(b)
The Department of Transportation, the Oregon Department of Administrative
Services or another state contracting agency will serve as the lead state
contracting agency and will execute personal services contracts with
architects, engineers, photogrammetrists, transportation planners and land
surveyors for work on the public improvement project.

(2)
The selection process required by subsection (1) of this section must require
the lead state contracting agency to select no fewer than the three most
qualified consultants when feasible in accordance with ORS 279C.110.

(3)
The local government is responsible for the final selection of the consultant
from the list of qualified consultants selected by the lead state contracting
agency or through an alternative process adopted by the local government.

(4)
Nothing in this section applies to the selection process used by a local
contracting agency when the contracting agency executes a contract directly
with architects, engineers, photogrammetrists, transportation planners or land
surveyors. [2003 c.794 §96; 2011 c.458 §6]

PROCUREMENT
OF CONSTRUCTION SERVICES

(General
Policies)

279C.300
Policy on competition. It is the policy of the State of Oregon that public
improvement contracts awarded under this chapter must be based on competitive
bidding, except as otherwise specifically provided in ORS 279C.335 for
exceptions and formal exemptions from competitive bidding requirements. [2003
c.794 §97]

279C.305
Least-cost policy for public improvements; costs estimates in budget process;
use of agency forces; record of costs. (1) It is the policy of the State of
Oregon that contracting agencies shall make every effort to construct public
improvements at the least cost to the contracting agency.

(2)
Not less than 30 days prior to adoption of the contracting agency’s budget for
the subsequent budget period, each contracting agency shall prepare and file
with the Commissioner of the Bureau of Labor and Industries a list of every
public improvement known to the contracting agency that the contracting agency
plans to fund in the budget period, identifying each improvement by name and
estimating the total on-site construction costs. The list shall also contain a
statement as to whether the contracting agency intends to perform the
construction through a private contractor. If the contracting agency intends to
perform construction work using the contracting agency’s own equipment and
personnel on a project estimated to cost more than $125,000, the contracting
agency shall also show that the contracting agency’s decision conforms to the
policy stated in subsection (1) of this section. The list is a public record
and may be revised periodically by the agency.

(3)
Before a contracting agency constructs a public improvement with its own
equipment or personnel:

(a)
If the estimated cost exceeds $125,000, the contracting agency shall prepare
adequate plans and specifications and the estimated unit cost of each
classification of work. The estimated cost of the work must include a
reasonable allowance for the cost, including investment cost, of any equipment
used. As used in this paragraph, “adequate” means sufficient to control the
performance of the work and to ensure satisfactory quality of construction by
the contracting agency personnel.

(b)
The contracting agency shall cause to be kept and preserved a full, true and
accurate account of the costs of performing the work, including all engineering
and administrative expenses and the cost, including investment costs, of any
equipment used. The final account of the costs is a public record.

(4)
Subsections (2) and (3) of this section do not apply to a contracting agency
when the public improvement is to be used for the distribution or transmission
of electric power.

(5)
For purposes of this section, resurfacing of highways, roads or streets at a
depth of two or more inches and at an estimated cost that exceeds $125,000 is a
public improvement. [2003 c.794 §98]

279C.307
Limitations in procurement of personal services; exception. (1) Except as
provided in subsection (2) of this section, a contracting agency that procures
personal services for the purpose of administering, managing, monitoring,
inspecting, evaluating compliance with or otherwise overseeing a public
contract that is subject to this chapter may not:

(a)
Procure the personal services from a contractor or an affiliate of a contractor
who is a party to the public contract that is subject to administration,
management, monitoring, inspection, evaluation or oversight by means of the
personal services; or

(b)
Procure the personal services through the public contract that is subject to administration,
management, monitoring, inspection, evaluation or oversight by means of the
personal services.

(2)
Subsection (1) of this section does not apply to a procurement for construction
manager/general contractor services or to a design-build procurement, as
defined in rules the Attorney General or a contracting agency adopts under ORS
279A.065. [2009 c.880 §11; 2013 c.522 §6]

Note: The amendments
to 279C.307 by section 6, chapter 522, Oregon Laws 2013, become operative July
1, 2014. See section 10, chapter 522, Oregon Laws 2013. The text that is
operative until July 1, 2014, is set forth for the user’s convenience.

279C.307. (1) Except as
provided in subsection (2) of this section, a contracting agency that procures
personal services for the purpose of administering, managing, monitoring,
inspecting, evaluating compliance with or otherwise overseeing a public
contract that is subject to this chapter may not:

(a)
Procure the personal services from a contractor or an affiliate of a contractor
who is a party to the public contract that is subject to administration,
management, monitoring, inspection, evaluation or oversight by means of the
personal services; or

(b)
Procure the personal services through the public contract that is subject to
administration, management, monitoring, inspection, evaluation or oversight by
means of the personal services.

(2)
Subsection (1) of this section does not apply to a procurement that qualifies
as a construction manager/general contractor procurement or a design-build
procurement, both as defined in OAR 125-249-0610 or 137-049-0610.

(3)
As used in this section, “affiliate” means a person that, directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with the contractor described in subsection (1)(a) of this
section.

Note: 279C.307 was
added to and made a part of ORS chapter 279C by legislative action but was not
added to any smaller series therein. See Preface to Oregon Revised Statutes for
further explanation.

279C.310
Limitation on contracting agency constructing public improvement. If a
contracting agency fails to adopt and apply a cost accounting system that
substantially complies with the model cost accounting guidelines developed by
the Oregon Department of Administrative Services pursuant to section 3, chapter
869, Oregon Laws 1979, as determined by an accountant qualified to perform
audits required by ORS 297.210 and 297.405 to 297.555 (Municipal Audit Law),
the contracting agency may not construct a public improvement with the
contracting agency’s own equipment or personnel if the cost exceeds $5,000. [2003
c.794 §99]

279C.315
Waiver of damages for unreasonable delay by contracting agency against public
policy.
(1) Any clause in a public improvement contract that purports to waive, release
or extinguish the rights of a contractor to damages or an equitable adjustment
arising out of unreasonable delay in performing the contract, if the delay is
caused by acts or omissions of the contracting agency or persons acting
therefor, is against public policy and is void and unenforceable.

(2)
Subsection (1) of this section is not intended to render void any contract
provision that:

(a)
Requires notice of any delay;

(b)
Provides for arbitration or other procedures for settlement of contract
disputes; or

(c)
Provides for reasonable liquidated damages. [2003 c.794 §100]

279C.320
Contracts for construction other than public improvements. (1) Contracting
agencies shall enter into contracts for emergency work, minor alteration,
ordinary repair or maintenance of public improvements, as well as any other
construction contract that is not defined as a public improvement under ORS
279A.010, in accordance with the provisions of ORS chapter 279B. Contracts for
emergency work are regulated under ORS 279B.080.

(2)
Nothing in this section relieves contracting agencies or contractors of any
other relevant requirements under this chapter, including payment of prevailing
wage rates when applicable.

(3)
When construction services are not considered to be a public improvement under
this chapter because no funds of a public agency are directly or indirectly
used, except for participation that is incidental or related primarily to
project design or inspection, the benefiting public body may nonetheless
condition acceptance of the services on receipt of such protections as the
public body considers to be in the public interest, including a performance
bond, a payment bond and appropriate insurance. [2003 c.794 §101; 2007 c.764 §13]

279C.325
Limitation on contracting agency awarding contract to nonresident education
service district.
A contracting agency may not award a public improvement contract, a contract
for a public works, as defined in ORS 279C.800, or a contract for personal
services, as defined in ORS 279C.100, to a nonresident bidder, as defined in
ORS 279A.120, that is an education service district. [2005 c.413 §2]

279C.330
“Findings” defined.
(1) As used in ORS 279C.345 and 279C.350, “findings” means the justification
for a contracting agency conclusion that includes, but is not limited to,
information regarding:

(a)
Operational, budget and financial data;

(b)
Public benefits;

(c)
Value engineering;

(d)
Specialized expertise required;

(e)
Public safety;

(f)
Market conditions;

(g)
Technical complexity; and

(h)
Funding sources.

(2)
As used in ORS 279C.335, “findings” means the justification for a conclusion
that a contracting agency or state agency, in seeking an exemption from the
competitive bidding requirement of ORS 279C.335 (1), reaches based on the
considerations set forth in ORS 279C.335 (2). [2003 c.794 §102; 2013 c.522 §7]

Note: The amendments
to 279C.330 by section 7, chapter 522, Oregon Laws 2013, become operative July
1, 2014. See section 10, chapter 522, Oregon Laws 2013. The text that is
operative until July 1, 2014, is set forth for the user’s convenience.

279C.330. As used in ORS
279C.335, 279C.345 and 279C.350, “findings” means the justification for a
contracting agency conclusion that includes, but is not limited to, information
regarding:

(1)
Operational, budget and financial data;

(2)
Public benefits;

(3)
Value engineering;

(4)
Specialized expertise required;

(5)
Public safety;

(6)
Market conditions;

(7)
Technical complexity; and

(8)
Funding sources.

279C.332
Definitions for ORS 279A.065, 279C.307, 279C.335, 279C.337 and 279C.380. As used in this
section and ORS 279A.065, 279C.307, 279C.335, 279C.337 and 279C.380:

(1)
“Affiliate” means a person that, directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with
another person.

(2)
“Construction manager/general contractor” means a person that provides
construction manager/general contractor services to a contracting agency under
a public improvement contract.

(i)
Functioning as a member of a project team that includes the contracting agency,
the architect or engineer that designs the public improvement under a separate
contract with the contracting agency and other contractors and consultants; and

(ii)
Reviewing and analyzing a design for a public improvement in order to:

(I)
Suggest changes in the design that minimize potential errors, delays,
unexpected costs and other problems during construction;

(II)
Recommend means by which the contracting agency may achieve the functions of
the public improvement or a component of the public improvement safely,
reliably, efficiently and at the lowest overall cost;

(III)
Improve the value and quality of the public improvement; and

(IV)
Reduce the time necessary to complete the public improvement; and

(B)
May include, depending on the specific terms of the public improvement contract
and on whether the contracting agency decides to proceed with construction, a
construction manager/general contractor’s:

(i)
Devising a schedule for constructing the public improvement;

(ii)
Estimating construction, materials, labor and other costs for the public
improvement;

(iii)
Establishing a fixed price, a guaranteed maximum price or other maximum price;

(iv)
Constructing portions of the public improvement and subcontracting portions to
other contractors;

(v)
Coordinating and overseeing the construction process; or

(vi)
Performing other services related to constructing a public improvement in
accordance with the terms of the public improvement contract.

(b)
“Construction manager/general contractor services” does not include services
related to constructing a public improvement under the terms of:

(A)
A public improvement contract that a contracting agency awards on the basis of
a competitive bidding process that does not require an exemption under ORS
279C.335;

(B)
A public improvement contract that results from a design-build procurement, as
defined in rules the Attorney General or a contracting agency adopts under ORS
279A.065, and that is exempt from the competitive bidding requirement under ORS
279C.335;

(C)
An energy savings performance contract;

(D)
A public improvement contract for a transportation project that:

(i)
Is exempt from the competitive bidding requirement under ORS 279C.335;

(ii)
Requires the contractor to construct the project according to plans and
specifications that a design professional provides under a separate contract
with the contracting agency and without significant participation from the
contractor; and

(iii)
The contracting agency awards on the basis of the contracting agency’s
evaluation of:

(I)
The contractor’s qualifications, the price to perform the work on the project
and the amount of time the contractor will take to perform the work; or

(II)
The contractor’s qualifications, past experience with similar projects, the
price to perform the work on the project and the contractor’s planned approach
to the project; or

(E)
A public improvement contract that is otherwise exempt or excepted from the
competitive bidding requirement under ORS 279C.335.

(4)
“Guaranteed maximum price” means the total price at which a construction
manager/general contractor agrees to provide construction manager/general
contractor services to a contracting agency in accordance with the terms and
conditions and scope of work for a specific public improvement contract and
within which are:

(a)
All costs the contracting agency agrees to reimburse and all fees the
contracting agency agrees to pay for completing the public improvement; and

(b)
Any contingent costs, fees or other charges specifically identified in the
public improvement contract. [2013 c.522 §2]

(a)
A public improvement contract with a qualified nonprofit agency that provides
employment opportunities for individuals with disabilities under ORS 279.835 to
279.855.

(b)
A public improvement contract that is exempt under subsection (2) of this
section.

(c)
A public improvement contract with a value of less than $5,000.

(d)
A public improvement contract with a contract price that does not exceed
$100,000 made under procedures for competitive quotes in ORS 279C.412 and
279C.414.

(e)
A contract to repair, maintain, improve or protect property the Department of
Veterans’ Affairs obtains under ORS 407.135 and 407.145 (1).

(f)
An energy savings performance contract that a contracting agency enters into in
accordance with rules of procedure adopted under ORS 279A.065.

(2)
Subject to subsection (4)(b) and (c) of this section, the Director of the
Oregon Department of Administrative Services, a local contract review board or,
for contracts described in ORS 279A.050 (3)(b), the Director of Transportation
may exempt a public improvement contract or a class of public improvement
contracts from the competitive bidding requirement of subsection (1) of this
section after the Director of the Oregon Department of Administrative Services,
the Director of Transportation or the local contract review board approves the
following findings that the contracting agency submits or, if a state agency is
not the contracting agency, that the state agency that is seeking the exemption
submits:

(a)
The exemption is unlikely to encourage favoritism in awarding public
improvement contracts or substantially diminish competition for public
improvement contracts.

(b)
Awarding a public improvement contract under the exemption will likely result
in substantial cost savings and other substantial benefits to the contracting
agency or the state agency that seeks the exemption or, if the contract is for
a public improvement described in ORS 279A.050 (3)(b), to the contracting
agency or the public. In approving a finding under this paragraph, the Director
of the Oregon Department of Administrative Services, the Director of
Transportation or the local contract review board shall consider the type, cost
and amount of the contract and, to the extent applicable to the particular
public improvement contract or class of public improvement contracts, the
following:

(A)
How many persons are available to bid;

(B)
The construction budget and the projected operating costs for the completed
public improvement;

(C)
Public benefits that may result from granting the exemption;

(D)
Whether value engineering techniques may decrease the cost of the public
improvement;

(E)
The cost and availability of specialized expertise that is necessary for the
public improvement;

(F)
Any likely increases in public safety;

(G)
Whether granting the exemption may reduce risks to the contracting agency, the
state agency or the public that are related to the public improvement;

(H)
Whether granting the exemption will affect the sources of funding for the
public improvement;

(I)
Whether granting the exemption will better enable the contracting agency to
control the impact that market conditions may have on the cost of and time
necessary to complete the public improvement;

(J)
Whether granting the exemption will better enable the contracting agency to
address the size and technical complexity of the public improvement;

(K)
Whether the public improvement involves new construction or renovates or
remodels an existing structure;

(L)
Whether the public improvement will be occupied or unoccupied during
construction;

(M)
Whether the public improvement will require a single phase of construction work
or multiple phases of construction work to address specific project conditions;
and

(N)
Whether the contracting agency or state agency has, or has retained under
contract, and will use contracting agency or state agency personnel,
consultants and legal counsel that have necessary expertise and substantial
experience in alternative contracting methods to assist in developing the
alternative contracting method that the contracting agency or state agency will
use to award the public improvement contract and to help negotiate, administer
and enforce the terms of the public improvement contract.

(c)
As an alternative to the finding described in paragraph (b) of this subsection,
if a contracting agency or state agency seeks an exemption that would allow the
contracting agency or state agency to use an alternative contracting method
that the contracting agency or state agency has not previously used, the contracting
agency or state agency may make a finding that identifies the project as a
pilot project for which the contracting agency or state agency intends to
determine whether using the alternative contracting method actually results in
substantial cost savings to the contracting agency, to the state agency or, if
the contract is for a public improvement described in ORS 279A.050 (3)(b), to
the contracting agency or the public. The contracting agency or state agency
shall include an analysis and conclusion regarding actual cost savings, if any,
in the evaluation required under ORS 279C.355.

(3)
In making findings to support an exemption for a class of public improvement
contracts, the contracting agency or state agency shall clearly identify the
class using the class’s defining characteristics. The characteristics must
include a combination of project descriptions or locations, time periods,
contract values, methods of procurement or other factors that distinguish the
limited and related class of public improvement contracts from the agency’s
overall construction program. The agency may not identify a class solely by
funding source, such as a particular bond fund, or by the method of
procurement, but shall identify the class using characteristics that reasonably
relate to the exemption criteria set forth in subsection (2) of this section.

(4)
In granting exemptions under subsection (2) of this section, the Director of
the Oregon Department of Administrative Services, the Director of
Transportation or the local contract review board shall:

(a)
If appropriate, direct the use of alternative contracting methods that take
account of market realities and modern practices and are consistent with the
public policy of encouraging competition.

(b)
Require and approve or disapprove written findings by the contracting agency or
state agency that support awarding a particular public improvement contract or
a class of public improvement contracts, without the competitive bidding
requirement of subsection (1) of this section. The findings must show that the
exemption of a contract or class of contracts complies with the requirements of
subsection (2) of this section.

(c)
Require a contracting agency or state agency that procures construction
manager/general contractor services to conduct the procurement in accordance
with model rules the Attorney General adopts under ORS 279A.065 (3).

(5)(a)
A contracting agency or state agency shall hold a public hearing before
approving the findings required by subsection (2) of this section and before
the Director of the Oregon Department of Administrative Services, the Director
of Transportation or the local contract review board grants an exemption from
the competitive bidding requirement for a public improvement contract or a
class of public improvement contracts.

(b)
Notification of the public hearing must be published in at least one trade
newspaper of general statewide circulation a minimum of 14 days before the
hearing.

(c)
The notice must state that the public hearing is for the purpose of taking
comments on the draft findings for an exemption from the competitive bidding
requirement. At the time of the notice, copies of the draft findings must be
made available to the public. At the option of the contracting agency or state
agency, the notice may describe the process by which the findings are finally
adopted and may indicate the opportunity for further public comment.

(d)
At the public hearing, the contracting agency or state agency shall offer an
opportunity for any interested party to appear and comment.

(e)
If a contracting agency or state agency must act promptly because of
circumstances beyond the agency’s control that do not constitute an emergency,
notification of the public hearing may be published simultaneously with the agency’s
solicitation of contractors for the alternative public contracting method, as
long as responses to the solicitation are due at least five days after the
hearing and approval of the findings.

(6)
The purpose of an exemption is to exempt one or more public improvement
contracts from competitive bidding requirements. The representations in and the
accuracy of the findings, including any general description of the resulting
public improvement contract, are the bases for approving the findings and granting
the exemption. The findings may describe anticipated features of the resulting
public improvement contract, but the final parameters of the contract are those
characteristics or specifics announced in the solicitation document.

(7)
A public improvement contract awarded under the competitive bidding requirement
of subsection (1) of this section may be amended only in accordance with rules
adopted under ORS 279A.065.

Note: The amendments
to 279C.335 by section 8, chapter 522, Oregon Laws 2013, become operative July
1, 2014. See section 10, chapter 522, Oregon Laws 2013. The text that is
operative until July 1, 2014, is set forth for the user’s convenience.

279C.335. (1) All public
improvement contracts shall be based upon competitive bids except:

(a)
Contracts made with qualified nonprofit agencies providing employment
opportunities for individuals with disabilities under ORS 279.835 to 279.855.

(b)
A public improvement contract exempt under subsection (2) of this section.

(c)
A public improvement contract with a value of less than $5,000.

(d)
A contract not to exceed $100,000 made under procedures for competitive quotes
in ORS 279C.412 and 279C.414.

(e)
Contracts for repair, maintenance, improvement or protection of property
obtained by the Department of Veterans’ Affairs under ORS 407.135 and 407.145
(1).

(2)
Subject to subsection (4)(b) of this section, the Director of the Oregon
Department of Administrative Services, a local contract review board or, for
contracts described in ORS 279A.050 (3)(b), the Director of Transportation may
exempt a public improvement contract or a class of public improvement contracts
from the competitive bidding requirements of subsection (1) of this section
upon approval of the following findings submitted by the contracting agency or,
if a state agency is not the contracting agency, the state agency seeking the
exemption:

(a)
It is unlikely that the exemption will encourage favoritism in the awarding of
public improvement contracts or substantially diminish competition for public
improvement contracts.

(b)
The awarding of public improvement contracts under the exemption will likely
result in substantial cost savings to the contracting agency, to the state
agency based upon the justification and information described in ORS 279C.330
or, if the contracts are for public improvements described in ORS 279A.050
(3)(b), to the contracting agency or the public. In making the finding, the
Director of the Oregon Department of Administrative Services, the Director of
Transportation or the local contract review board may consider the type, cost
and amount of the contract, the number of persons available to bid and such
other factors as may be deemed appropriate.

(c)
As an alternative to the finding described in paragraph (b) of this subsection,
when a contracting agency or state agency seeks an exemption that would allow
the use of an alternate contracting method that the agency has not previously
used, the agency may make a finding that identifies the project as a pilot
project for which the agency intends to determine whether the use of the
alternate contracting method actually results in substantial cost savings to
the contracting agency, to the state agency or, if the contract is for a public
improvement described in ORS 279A.050 (3)(b), to the contracting agency or the
public. The agency shall include an analysis and conclusion regarding actual
cost savings, if any, in the evaluation required under ORS 279C.355.

(3)
In making findings to support an exemption for a class of public improvement
contracts, the contracting agency or state agency shall clearly identify the
class using the class’s defining characteristics. Those characteristics shall
include some combination of project descriptions or locations, time periods,
contract values, methods of procurement or other factors that distinguish the
limited and related class of public improvement contracts from the agency’s
overall construction program. The agency may not identify a class solely by
funding source, such as a particular bond fund, or by the method of
procurement, but shall identify the class using characteristics that reasonably
relate to the exemption criteria set forth in subsection (2) of this section.

(4)
In granting exemptions under subsection (2) of this section, the Director of
the Oregon Department of Administrative Services, the Director of
Transportation or the local contract review board shall:

(a)
When appropriate, direct the use of alternate contracting methods that take
account of market realities and modern practices and are consistent with the
public policy of encouraging competition.

(b)
Require and approve or disapprove written findings by the contracting agency or
state agency that support the awarding of a particular public improvement
contract or a class of public improvement contracts, without the competitive
bidding requirement of subsection (1) of this section. The findings must show
that the exemption of a contract or class of contracts complies with the
requirements of subsection (2) of this section.

(5)(a)
Before final adoption of the findings required by subsection (2) of this
section exempting a public improvement contract or a class of public
improvement contracts from the requirement of competitive bidding, a
contracting agency or state agency shall hold a public hearing.

(b)
Notification of the public hearing shall be published in at least one trade
newspaper of general statewide circulation a minimum of 14 days before the
hearing.

(c)
The notice shall state that the public hearing is for the purpose of taking
comments on the draft findings for an exemption from the competitive bidding
requirement. At the time of the notice, copies of the draft findings shall be
made available to the public. At the option of the contracting agency or state
agency, the notice may describe the process by which the findings are finally
adopted and may indicate the opportunity for any further public comment.

(d)
At the public hearing, the contracting agency or state agency shall offer an
opportunity for any interested party to appear and present comment.

(e)
If a contracting agency or state agency is required to act promptly due to
circumstances beyond the agency’s control that do not constitute an emergency,
notification of the public hearing may be published simultaneously with the
agency’s solicitation of contractors for the alternative public contracting
method, as long as responses to the solicitation are due at least five days
after the meeting and approval of the findings.

(6)
The purpose of an exemption is to exempt one or more public improvement
contracts from competitive bidding requirements. The representations in and the
accuracy of the findings, including any general description of the resulting
public improvement contract, are the bases for approving the findings and
granting the exception. The findings may describe anticipated features of the
resulting public improvement contract, but the final parameters of the contract
are those characteristics or specifics announced in the solicitation document.

(7)
A public improvement contract awarded under the competitive bidding requirement
of subsection (1) of this section may be amended only in accordance with rules
adopted under ORS 279A.065.

(8)
Public improvement contracts excepted from competitive bid requirements under
subsection (1)(a), (c), (d), (e) or (f) of this section are not subject to the
exemption requirements of subsection (2) of this section.

(a)
Describe the criteria the contracting agency will use to evaluate proposals for
the construction manager/general contractor services the contracting agency
seeks and what weight the contracting agency will give each criterion in the
evaluation;

(b)
Describe how the contracting agency will use interviews in the contracting
agency’s procurement and how the contracting agency will evaluate information
the contracting agency obtains from interviews, if the contracting agency uses
interviews in the procurement;

(c)
Describe any other criteria the contracting agency may consider in selecting a
construction manager/general contractor;

(d)
Describe how the contracting agency will combine scoring from the interviews,
from evaluating the proposals and from other criteria specified in accordance
with paragraph (c) of this subsection to arrive at a proposer’s final score and
ranking;

(e)
State that any savings the construction manager/general contractor realizes in
performing the public improvement contract will accrue to the contracting
agency, unless the public improvement contract provides otherwise;

(f)
Specify terms and conditions that govern how the fixed price, guaranteed
maximum price or other maximum price set forth in the public improvement
contract will be determined and whether the price includes or is based on unit
pricing or allows for work that is constructed in phases;

(g)
State that the contracting agency will not pay any amount that exceeds a fixed
price, guaranteed maximum price or other maximum price specified in the public
improvement contract unless the amount results from material changes to the
scope of work set forth in the public improvement contract and the parties to
the public improvement contract agree in writing to the material changes;

(h)
State that the contracting agency will conduct the procurement in accordance
with model rules the Attorney General adopts under ORS 279A.065 (3); and

(i)
Specify deadlines and time periods for the procurement that allow prospective
contractors a reasonable opportunity to submit proposals, including but not
limited to:

(A)
The date and time by which the contracting agency must receive proposals;

(B)
The dates on which or the time periods during which the contracting agency will
conduct interviews, if the contracting agency will conduct interviews for the
procurement;

(C)
The date by which the contracting agency plans to indicate an intent to award the
public improvement contract; and

(D)
The time period during which the contracting agency will meet with proposers
that the contracting agency did not select for the public improvement contract,
if a proposer requests a meeting to discuss the procurement.

(3)
By the earlier of the date on which a contracting agency and a construction
manager/general contractor agree on a fixed price, guaranteed maximum price or
other maximum price or the date on which the construction manager/general
contractor begins to solicit offers for construction services from
subcontractors, the public improvement contract that the contracting agency
negotiates with the construction manager/general contractor must:

(a)
Describe the methods the construction manager/general contractor will use to
qualify and select subcontractors. The methods must be competitive and should
provide prospective subcontractors with a reasonable opportunity to participate
in the construction manager/general contractor’s qualification and selection
process.

(b)
Identify the portions of the construction work under the public improvement
contract for which the construction manager/general contractor may waive the
qualification and selection process described in paragraph (a) of this
subsection and describe:

(A)
How the construction manager/general contractor may determine the portions of
the construction work that will not be subject to the qualification and
selection process described in paragraph (a) of this subsection; and

(B)
The process the construction manager/general contractor will use to qualify and
select prospective subcontractors for the portions of the construction work
that are not subject to the qualification and selection process described in
paragraph (a) of this subsection.

(c)
Identify the conditions under which the construction manager/general contractor
or an affiliate or subsidiary of the construction manager/general contractor
may perform or compete with other prospective subcontractors to perform
construction work under the public improvement contract and describe the
methods the construction manager/general contractor will use to qualify and
select an affiliate or subsidiary to perform the construction work.

(d)
Describe how the construction manager/general contractor will announce which
prospective subcontractors the construction manager/general contractor has
selected to perform construction services in connection with the public
improvement contract.

(e)
Describe the conditions under which the construction manager/general contractor
will discuss the qualification and selection process described in this
subsection with a prospective subcontractor that the construction
manager/general contractor did not select for a subcontract if the construction
manager/general contractor receives a request from the prospective
subcontractor to discuss the process.

(4)
As used in this section, “savings” means a positive difference between a fixed
price, a guaranteed maximum price or other maximum price set forth in a public
improvement contract and the actual cost of the work, including costs for which
a contracting agency reimburses a construction manager/general contractor and
fees or profits the construction manager/general contractor earns. [2013 c.522 §3]

Note: 279C.337 was
added to and made a part of ORS chapter 279C by legislative action but was not
added to any smaller series therein. See Preface to Oregon Revised Statutes for
further explanation.

279C.340
Contract negotiations. If a public improvement contract is competitively
bid and all responsive bids from responsible bidders exceed the contracting
agency’s cost estimate, the contracting agency, in accordance with rules
adopted by the contracting agency, may negotiate with the lowest responsive,
responsible bidder, prior to awarding the contract, in order to solicit value
engineering and other options to attempt to bring the contract within the
contracting agency’s cost estimate. A negotiation with the lowest responsive,
responsible bidder under this section may not result in the award of the
contract to that bidder if the scope of the project is significantly changed
from the original bid proposal. Notwithstanding any other provision of law, the
records of a bidder used in contract negotiation under this section are not
subject to public inspection until after the negotiated contract has been
awarded or the negotiation process has been terminated. [2003 c.794 §106]

279C.345
Specifications for contracts; exemptions. (1) Specifications for public
improvement contracts may not expressly or implicitly require any product by
any brand name or mark, nor the product of any particular manufacturer or
seller unless the product is exempt under subsection (2) of this section.

(2)
The Director of the Oregon Department of Administrative Services, a local
contract review board or, for contracts described in ORS 279A.050 (3)(b), the
Director of Transportation may exempt certain products or classes of products
from subsection (1) of this section upon any of the following findings:

(a)
It is unlikely that the exemption will encourage favoritism in the awarding of
public improvement contracts or substantially diminish competition for public
improvement contracts;

(b)
The specification of a product by brand name or mark, or the product of a
particular manufacturer or seller, would result in substantial cost savings to
the contracting agency;

(c)
There is only one manufacturer or seller of the product of the quality
required; or

279C.350
Exemption procedure; appeal. (1) Exemptions granted by the Director
of the Oregon Department of Administrative Services under ORS 279C.335 (2) or
279C.345 (2) constitute rulemaking and not contested cases under ORS chapter
183. However, an exemption granted with regard to a specific public improvement
contract by the Director of the Oregon Department of Administrative Services,
or an exemption granted by the Director of Transportation with regard to a
specific public improvement contract or class of public improvement contracts
described in ORS 279A.050 (3)(b), shall be granted by order. The order shall
set forth findings supporting the decision to grant or deny the request for the
exemption. The order is reviewable under ORS 183.484 and does not constitute a
contested case order. Jurisdiction for review of the order is with the Circuit
Court of Marion County. The court may award costs and attorney fees to the
prevailing party.

(2)
Any person except the contracting agency or anyone representing the contracting
agency may bring a petition for a declaratory judgment to test the validity of
any rule adopted by the Director of the Oregon Department of Administrative
Services under ORS 279C.335 or 279C.345 in the manner provided in ORS 183.400.

(3)
Any person except the contracting agency or anyone representing the contracting
agency may bring an action for writ of review under ORS chapter 34 to test the
validity of an exemption granted under ORS 279C.335 or 279C.345 by a local
contract review board. [2003 c.794 §108; 2003 c.794 §109; 2007 c.764 §20]

279C.355
Evaluation of public improvement projects not contracted by competitive
bidding.
(1) Upon completion of and final payment for any public improvement contract,
or class of public improvement contracts, in excess of $100,000 for which the
contracting agency did not use the competitive bidding process, the contracting
agency shall prepare and deliver to the Director of the Oregon Department of
Administrative Services, the local contract review board or, for public
improvement contracts described in ORS 279A.050 (3)(b), the Director of
Transportation an evaluation of the public improvement contract or the class of
public improvement contracts.

(2)
The evaluation must include but is not limited to the following matters:

(a)
The actual project cost as compared with original project estimates;

(b)
The amount of any guaranteed maximum price;

(c)
The number of project change orders issued by the contracting agency;

(d)
A narrative description of successes and failures during the design,
engineering and construction of the project; and

(e)
An objective assessment of the use of the alternative contracting process as
compared to the findings required by ORS 279C.335.

(3)
The evaluations required by this section:

(a)
Must be made available for public inspection; and

(b)
Must be completed within 30 days of the date the contracting agency accepts:

(A)
The public improvement project; or

(B)
The last public improvement project if the project falls within a class of
public improvement contracts. [2003 c.794 §111; 2003 c.794 §112; 2007 c.764 §§22,23]

(Solicitation;
Contract Award; Rejection)

279C.360
Requirement for public improvement advertisements. (1) An
advertisement for public improvement contracts must be published at least once
in at least one newspaper of general circulation in the area where the contract
is to be performed and in as many additional issues and publications as the
contracting agency may determine. The Director of the Oregon Department of
Administrative Services, a local contract review board or, for contracts
described in ORS 279A.050 (3)(b), the Director of Transportation, by rule or
order, may authorize advertisements for public improvement contracts to be
published electronically instead of in a newspaper of general circulation if
the director or board determines that electronic advertisements are likely to
be cost-effective. If the public improvement contract has an estimated cost in
excess of $125,000, the advertisement must be published in at least one trade
newspaper of general statewide circulation. The Director of the Oregon
Department of Administrative Services, the Director of Transportation or the
local contract review board may, by rule or order, require an advertisement to
be published more than once or in one or more additional publications.

(2)
All advertisements for public improvement contracts must state:

(a)
The public improvement project;

(b)
The office where the specifications for the project may be reviewed;

(c)
The date that prequalification applications must be filed under ORS 279C.430
and the class or classes of work for which bidders must be prequalified if
prequalification is a requirement;

(d)
The date and time after which bids will not be received, which must be at least
five days after the date of the last publication of the advertisement;

(e)
The name and title of the person designated for receipt of bids;

(f)
The date, time and place that the contracting agency will publicly open the
bids; and

(g)
If the contract is for a public works subject to ORS 279C.800 to 279C.870 or
the Davis-Bacon Act (40 U.S.C. 3141 et seq.). [2003 c.794 §114; 2005 c.103 §14a;
2007 c.844 §1]

279C.365
Requirements for solicitation documents and bids and proposals. (1) A
contracting agency that prepares solicitation documents for a public
improvement contract shall, at a minimum, include in the solicitation
documents:

(a)
A designation for or description of the public improvement project;

(b)
The office where the specifications for the project may be reviewed;

(c)
The date that prequalification applications must be filed under ORS 279C.430
and the class or classes of work for which bidders must be prequalified if
prequalification is a requirement;

(d)
The date and time after which bids will not be received, which must be at least
five days after the date of the last publication of the advertisement, and may,
in the sole discretion of the contracting agency, direct or permit bidders to
submit and the contracting agency to receive bids by electronic means;

(e)
The name and title of the person designated to receive bids;

(f)
The date on which and the time and place at which the contracting agency will
publicly open the bids;

(g)
A statement that, if the contract is for a public works project subject to the
state prevailing rates of wage under ORS 279C.800 to 279C.870, the federal
prevailing rates of wage under the Davis-Bacon Act (40 U.S.C. 3141 et seq.) or
both the state and federal prevailing rates of wage, the contracting agency
will not receive or consider a bid unless the bid contains a statement by the
bidder that the bidder will comply with ORS 279C.838 or 279C.840 or 40 U.S.C.
3141 et seq.;

(h)
A statement that each bid must identify whether the bidder is a resident
bidder, as defined in ORS 279A.120;

(i)
A statement that the contracting agency may reject a bid that does not comply
with prescribed public contracting procedures and requirements, including the
requirement to demonstrate the bidder’s responsibility under ORS 279C.375
(3)(b), and that the contracting agency may reject for good cause all bids
after finding that doing so is in the public interest;

(j)
Information addressing whether a contractor or subcontractor must be licensed
under ORS 468A.720; and

(k)
A statement that the contracting agency may not receive or consider a bid for a
public improvement contract unless the bidder is licensed by the Construction
Contractors Board or the State Landscape Contractors Board.

(3)
A bid made to the contracting agency under ORS 279C.335 or 279C.400 must be:

(a)
In writing;

(b)
Filed with the person the contracting agency designates to receive bids; and

(c)
Opened publicly by the contracting agency immediately after the deadline for
submitting bids.

(4)
After the contracting agency opens the bids, the contracting agency shall make
the bids available for public inspection.

(5)
A bidder shall submit or post a surety bond, irrevocable letter of credit
issued by an insured institution as defined in ORS 706.008, cashier’s check or
certified check for all bids as bid security unless the contracting agency has
exempted the contract for which the bidder submits a bid from this requirement
under ORS 279C.390. The security may not exceed 10 percent of the amount bid
for the contract.

(6)
Subsection (5) of this section applies only to public improvement contracts
with a value, estimated by the contracting agency, of more than $100,000 or, in
the case of contracts for highways, bridges and other transportation projects,
more than $50,000. [2003 c.794 §115; 2005 c.103 §15; 2007 c.764 §25; 2007 c.844
§2; 2009 c.368 §1]

279C.370
First-tier subcontractor disclosure. (1)(a) Within two working hours after
the date and time of the deadline when bids are due to a contracting agency for
a public improvement contract, a bidder shall submit to the contracting agency
a disclosure of the first-tier subcontractors that:

(A)
Will be furnishing labor or will be furnishing labor and materials in
connection with the public improvement contract; and

(B)
Will have a contract value that is equal to or greater than five percent of the
total project bid or $15,000, whichever is greater, or $350,000 regardless of
the percentage of the total project bid.

(b)
For each contract to which this subsection applies, the contracting agency
shall designate a deadline for submission of bids that has a date on a Tuesday,
Wednesday or Thursday and a time between 2 p.m. and 5 p.m., except that this
paragraph does not apply to public contracts for maintenance or construction of
highways, bridges or other transportation facilities.

(c)
This subsection applies only to public improvement contracts with a value,
estimated by the contracting agency, of more than $100,000.

(d)
This subsection does not apply to public improvement contracts that have been
exempted from competitive bidding requirements under ORS 279C.335 (2).

(2)
The disclosure of first-tier subcontractors under subsection (1) of this
section must include the name of each subcontractor, the category of work that
each subcontractor will perform and the dollar value of each subcontract. The
information shall be disclosed in substantially the following form:

This
form must be submitted at the location specified in the Invitation to Bid on
the advertised bid closing date and within two working hours after the
advertised bid closing time.

List
below the name of each subcontractor that will be furnishing labor or will be
furnishing labor and materials and that is required to be disclosed, the
category of work that the subcontractor will be performing and the dollar value
of the subcontract. Enter “NONE” if there are no subcontractors that need to be
disclosed. (ATTACH ADDITIONAL SHEETS IF NEEDED.)

DOLLAR CATEGORY

NAME VALUE OF
WORK

1)________ $ ______ ________

_________ ______ ________

2)________ $ ______ ________

_________ ______ ________

3)________ $ ______ ________

_________ ______ ________

4)________ $ ______ ________

_________ ______ ________

Failure
to submit this form by the disclosure deadline will result in a nonresponsive
bid. A nonresponsive bid will not be considered for award.

(3)
A contracting agency shall accept the subcontractor disclosure. The contracting
agency shall consider the bid of any contractor that does not submit a
subcontractor disclosure to the contracting agency to be a nonresponsive bid
and may not award the contract to the contractor. A contracting agency is not
required to determine the accuracy or the completeness of the subcontractor
disclosure.

(4)
After the bids are opened, the subcontractor disclosures must be made available
for public inspection.

(5)
A contractor may substitute a first-tier subcontractor under the provisions of
ORS 279C.585.

(6)
A subcontractor may file a complaint under ORS 279C.590 based on the disclosure
requirements of subsection (1) of this section. [2003 c.794 §116; 2005 c.103 §16]

279C.375
Award and execution of contract; determination of responsibility of bidder;
bonds; impermissible exclusions. (1) After a contracting agency has
opened bids and determined that the contracting agency will award a public
improvement contract, the contracting agency shall award the contract to the
lowest responsible bidder.

(2)
At least seven days before awarding a public improvement contract, unless the
contracting agency determines that seven days is impractical under rules
adopted under ORS 279A.065, the contracting agency shall issue to each bidder
or post, electronically or otherwise, a notice of the contracting agency’s
intent to award a contract. This subsection does not apply to a contract to
which competitive bidding does not apply under ORS 279C.335 (1)(c) or (d). The
notice and the manner in which the notice is posted or issued must conform to
rules adopted under ORS 279A.065.

(3)
In determining the lowest responsible bidder, a contracting agency shall do all
of the following:

(a)
Check the list created by the Construction Contractors Board under ORS 701.227
for bidders who are not qualified to hold a public improvement contract.

(b)
Determine whether the bidder is responsible. A responsible bidder must
demonstrate to the contracting agency that the bidder:

(A)
Has available the appropriate financial, material, equipment, facility and
personnel resources and expertise, or has the ability to obtain the resources
and expertise, necessary to meet all contractual responsibilities.

(B)
Holds current licenses that businesses or service professionals operating in
this state must hold in order to undertake or perform the work specified in the
contract.

(C)
Is covered by liability insurance and other insurance in amounts the
contracting agency requires in the solicitation documents.

(D)
Qualifies as a carrier-insured employer or a self-insured employer under ORS
656.407 or has elected coverage under ORS 656.128.

(E)
Has made the disclosure required under ORS 279C.370.

(F)
Completed previous contracts of a similar nature with a satisfactory record of
performance. For purposes of this subparagraph, a satisfactory record of
performance means that to the extent that the costs associated with and time
available to perform a previous contract remained within the bidder’s control,
the bidder stayed within the time and budget allotted for the procurement and
otherwise performed the contract in a satisfactory manner. The contracting
agency shall document the bidder’s record of performance if the contracting
agency finds under this subparagraph that the bidder is not responsible.

(G)
Has a satisfactory record of integrity. The contracting agency in evaluating
the bidder’s record of integrity may consider, among other things, whether the
bidder has previous criminal convictions for offenses related to obtaining or
attempting to obtain a contract or subcontract or in connection with the bidder’s
performance of a contract or subcontract. The contracting agency shall document
the bidder’s record of integrity if the contracting agency finds under this
subparagraph that the bidder is not responsible.

(H)
Is legally qualified to contract with the contracting agency.

(I)
Supplied all necessary information in connection with the inquiry concerning
responsibility. If a bidder fails to promptly supply information concerning
responsibility that the contracting agency requests, the contracting agency
shall determine the bidder’s responsibility based on available information, or
may find that the bidder is not responsible.

(c)
Document the contracting agency’s compliance with the requirements of
paragraphs (a) and (b) of this subsection in substantially the following form:

(The
contracting agency must submit this form with attachments, if any, to the

Construction
Contractors Board within 30 days after the date of contract award.)

The
contracting agency has (check all of the following):

[
] Checked the list created by the Construction Contractors Board under ORS
701.227 for bidders who are not qualified to hold a public improvement
contract.

[
] Determined whether the bidder has met the standards of responsibility. In so
doing, the contracting agency has found that the bidder demonstrated that the
bidder:

[
] Has available the appropriate financial, material, equipment, facility and
personnel resources and expertise, or the ability to obtain the resources and expertise,
necessary to meet all contractual responsibilities.

[
] Holds current licenses that businesses or service professionals operating in
this state must hold in order to undertake or perform the work specified in the
contract.

[
] Is covered by liability insurance and other insurance in amounts required in
the solicitation documents.

[
] Qualifies as a carrier-insured employer or a self-insured employer under ORS
656.407 or has elected coverage under ORS 656.128.

[
] Has disclosed the bidder’s first-tier subcontractors in accordance with ORS
279C.370.

[
] Has a satisfactory record of performance.

[
] Has a satisfactory record of integrity.

[
] Is legally qualified to contract with the contracting agency.

[
] Has supplied all necessary information in connection with the inquiry
concerning responsibility.

[
] Determined the bidder to be (check one of the following):

[
] Responsible under ORS 279C.375 (3)(a) and (b).

[
] Not responsible under ORS 279C.375 (3)(a) and (b).

(Attach
documentation if the contracting agency finds the bidder not to be
responsible.)

(d)
Submit the form described in paragraph (c) of this subsection, with any
attachments, to the Construction Contractors Board within 30 days after the
date the contracting agency awards the contract.

(4)
The successful bidder shall:

(a)
Promptly execute a formal contract; and

(b)
Execute and deliver to the contracting agency a performance bond and a payment
bond when required under ORS 279C.380.

(5)
Based on competitive bids, a contracting agency may award a public improvement
contract or may award multiple public improvement contracts when specified in
the invitation to bid.

(6)
A contracting agency may not exclude a commercial contractor from competing for
a public contract on the basis that the license issued by the Construction
Contractors Board is endorsed as a level 1 or level 2 license. As used in this
section, “commercial contractor” has the meaning given that term in ORS
701.005. [2003 c.794 §117; 2005 c.103 §§17,18; 2005 c.376 §1; 2007 c.764 §§26,27;
2007 c.836 §§42,43; 2009 c.880 §§9,9a]

279C.380
Performance bond; payment bond; waiver of bonds. (1) Except as
provided in ORS 279C.390, a successful bidder for a public improvement contract
shall promptly execute and deliver to the contracting agency the following
bonds:

(a)
A performance bond in an amount equal to the full contract price conditioned on
the faithful performance of the contract in accordance with the plans,
specifications and conditions of the contract. The performance bond must be
solely for the protection of the contracting agency that awarded the contract
and any public agency or agencies for whose benefit the contract was awarded.
If the public improvement contract is with a single person to provide both
design and construction of a public improvement, the obligation of the
performance bond for the faithful performance of the contract required by this
paragraph must also be for the preparation and completion of the design and
related services covered under the contract. Notwithstanding when a cause of
action, claim or demand accrues or arises, the surety is not liable after final
completion of the contract, or longer if provided for in the contract, for
damages of any nature, economic or otherwise and including corrective work,
attributable to the design aspect of a design-build project, or for the costs
of design revisions needed to implement corrective work. A contracting agency
may waive the requirement of a performance bond. A contracting agency may
permit the successful bidder to submit a cashier’s check or certified check in
lieu of all or a portion of the required performance bond.

(b)
A payment bond in an amount equal to the full contract price, solely for the
protection of claimants under ORS 279C.600.

(2)
If the public improvement contract is with a single person to provide
construction manager/general contractor services, in which a guaranteed maximum
price may be established by an amendment authorizing construction period
services following preconstruction period services, the contractor shall
provide the bonds required by subsection (1) of this section upon execution of
an amendment establishing the guaranteed maximum price. The contracting agency
shall also require the contractor to provide bonds equal to the value of
construction services authorized by any early work amendment in advance of the
guaranteed maximum price amendment. Such bonds must be provided before
construction starts.

(3)
Each performance bond and each payment bond must be executed solely by a surety
company or companies holding a certificate of authority to transact surety
business in this state. The bonds may not constitute the surety obligation of
an individual or individuals. The performance and payment bonds must be payable
to the contracting agency or to the public agency or agencies for whose benefit
the contract was awarded, as specified in the solicitation documents, and shall
be in a form approved by the contracting agency.

(4)
In cases of emergency, or when the interest or property of the contracting
agency or the public agency or agencies for whose benefit the contract was
awarded probably would suffer material injury by delay or other cause, the
requirement of furnishing a good and sufficient performance bond and a good and
sufficient payment bond for the faithful performance of any public improvement
contract may be excused, if a declaration of such emergency is made in
accordance with rules adopted under ORS 279A.065.

(5)
This section applies only to public improvement contracts with a value,
estimated by the contracting agency, of more than $100,000 or, in the case of
contracts for highways, bridges and other transportation projects, more than
$50,000. [2003 c.794 §118; 2005 c.103 §20; 2013 c.522 §9]

Note: The amendments
to 279C.380 by section 9, chapter 522, Oregon Laws 2013, become operative July
1, 2014. See section 10, chapter 522, Oregon Laws 2013. The text that is
operative until July 1, 2014, is set forth for the user’s convenience.

279C.380. (1) Except as
provided in ORS 279C.390, a successful bidder for a public improvement contract
shall promptly execute and deliver to the contracting agency the following
bonds:

(a)
A performance bond in an amount equal to the full contract price conditioned on
the faithful performance of the contract in accordance with the plans,
specifications and conditions of the contract. The performance bond must be
solely for the protection of the contracting agency that awarded the contract
and any public agency or agencies for whose benefit the contract was awarded.
If the public improvement contract is with a single person to provide both
design and construction of a public improvement, the obligation of the
performance bond for the faithful performance of the contract required by this
paragraph must also be for the preparation and completion of the design and
related services covered under the contract. Notwithstanding when a cause of
action, claim or demand accrues or arises, the surety is not liable after final
completion of the contract, or longer if provided for in the contract, for
damages of any nature, economic or otherwise and including corrective work,
attributable to the design aspect of a design-build project, or for the costs
of design revisions needed to implement corrective work. A contracting agency
may waive the requirement of a performance bond. A contracting agency may
permit the successful bidder to submit a cashier’s check or certified check in
lieu of all or a portion of the required performance bond.

(b)
A payment bond in an amount equal to the full contract price, solely for the
protection of claimants under ORS 279C.600.

(2)
If the public improvement contract is with a single person to provide
construction manager and general contractor services, in which a guaranteed
maximum price may be established by an amendment authorizing construction
period services following preconstruction period services, the contractor shall
provide the bonds required by subsection (1) of this section upon execution of
an amendment establishing the guaranteed maximum price. The contracting agency
shall also require the contractor to provide bonds equal to the value of
construction services authorized by any early work amendment in advance of the
guaranteed maximum price amendment. Such bonds must be provided before
construction starts.

(3)
Each performance bond and each payment bond must be executed solely by a surety
company or companies holding a certificate of authority to transact surety
business in this state. The bonds may not constitute the surety obligation of
an individual or individuals. The performance and payment bonds must be payable
to the contracting agency or to the public agency or agencies for whose benefit
the contract was awarded, as specified in the solicitation documents, and shall
be in a form approved by the contracting agency.

(4)
In cases of emergency, or when the interest or property of the contracting
agency or the public agency or agencies for whose benefit the contract was
awarded probably would suffer material injury by delay or other cause, the
requirement of furnishing a good and sufficient performance bond and a good and
sufficient payment bond for the faithful performance of any public improvement
contract may be excused, if a declaration of such emergency is made in
accordance with rules adopted under ORS 279A.065.

(5)
This section applies only to public improvement contracts with a value,
estimated by the contracting agency, of more than $100,000 or, in the case of
contracts for highways, bridges and other transportation projects, more than
$50,000.

279C.385
Return or retention of bid security. (1) A contracting agency shall return
the bid security of the successful bidder to the bidder after the bidder:

(a)
Executes the public improvement contract; and

(b)
Delivers a good and sufficient performance bond, a good and sufficient payment
bond and any required proof of insurance.

(2)
A bidder who is awarded a contract and who fails promptly and properly to
execute the contract and to deliver the performance bond, the payment bond and
the proof of insurance, when bonds or insurance are required, shall forfeit the
bid security that accompanied the successful bid. The bid security shall be
taken and considered as liquidated damages and not as a penalty for failure of
the bidder to execute the contract and deliver the bonds and proof of
insurance.

(3)
The contracting agency may return the bid security of unsuccessful bidders to
them when the bids have been opened and the contract has been awarded, and may
not retain the bid security after the contract has been duly signed. [2003
c.794 §119; 2005 c.103 §21]

279C.390
Exemption of contracts from bid security and bonds. (1) Subject to
the provisions of subsection (2) of this section, the Director of the Oregon
Department of Administrative Services, a state contracting agency with
procurement authority under ORS 279A.050, a local contract review board or, for
contracts described in ORS 279A.050 (3)(b), the Director of Transportation may
exempt certain contracts or classes of contracts from all or a portion of the
requirement for bid security and from all or a portion of the requirement that
good and sufficient bonds be furnished to ensure performance of the contract
and payment of obligations incurred in the performance.

(2)
The contracting agency may require bid security and a good and sufficient
performance bond, a good and sufficient payment bond, or any combination of
such bonds, even though the public improvement contract is of a class exempted
under subsection (1) of this section.

(3)
The Director of Transportation may:

(a)
Exempt contracts or classes of contracts financed from the proceeds of bonds
issued under ORS 367.620 (3)(a) from the requirement for bid security and from
the requirement that a good and sufficient bond be furnished to ensure
performance of the contract; or

(b)
Reduce the amount of the required performance bond for contracts or classes of
contracts financed from the proceeds of the bonds issued under ORS 367.620
(3)(a) to less than 100 percent of the contract price.

(4)
Any recoverable damages that exceed the amount of the performance bond required
under subsection (3) of this section shall be the sole responsibility of the
Department of Transportation. [2003 c.794 §120; 2003 c.794 §120a; 2007 c.764 §28]

279C.395
Rejection of bids.
A contracting agency may reject any bid not in compliance with all prescribed
public bidding procedures and requirements, and may, for good cause, reject all
bids upon a finding of the contracting agency it is in the public interest to
do so. In any case where competitive bids are required and all bids are
rejected, and the proposed project is not abandoned, new bids may be called for
as in the first instance. [2003 c.794 §121]

(Competitive
Proposals)

279C.400
Competitive proposals; procedure. (1) When authorized or required by an
exemption granted under ORS 279C.335, a contracting agency may solicit and
award a public improvement contract, or may award multiple public improvement
contracts when specified in the request for proposals, by requesting and evaluating
competitive proposals. A contract awarded under this section may be amended
only in accordance with rules adopted under ORS 279A.065.

(2)
Except as provided in ORS 279C.330 to 279C.355, 279C.360 to 279C.390, 279C.395
and 279C.430 to 279C.450, competitive proposals shall be subject to the
following requirements of competitive bidding:

(a)
Advertisement under ORS 279C.360;

(b)
Requirements for solicitation documents under ORS 279C.365;

(c)
Disqualification due to a Construction Contractors Board listing as described
in ORS 279C.375 (3)(a);

(g)
Disqualification and prequalification under ORS 279C.430, 279C.435 and
279C.440.

(3)
For the purposes of applying the requirements listed in subsection (2) of this
section to competitive proposals, when used in the sections listed in
subsection (2) of this section, “bids” includes proposals, and “bid documents”
and “invitation to bid” include requests for proposals.

(4)
Competitive proposals are not subject to the following requirements of
competitive bidding:

(a)
First-tier subcontractor disclosure under ORS 279C.370; and

(b)
Reciprocal preference under ORS 279A.120.

(5)
The contracting agency may require proposal security that serves the same
function with respect to proposals as bid security serves with respect to bids
under ORS 279C.365 (5) and 279C.385, as follows:

(a)
The contracting agency may require proposal security in a form and amount as
may be determined to be reasonably necessary or prudent to protect the
interests of the contracting agency.

(b)
The contracting agency shall retain the proposal security if a proposer who is
awarded a contract fails to promptly and properly execute the contract and
provide any required bonds or insurance.

(c)
The contracting agency shall return the proposal security to all proposers upon
the execution of the contract, or earlier in the selection process.

(6)
In all other respects, and subject to rules adopted under ORS 279A.065,
references in this chapter to invitations to bid, bids or bidders shall, to the
extent practicable within the proposal process, be deemed equally applicable to
requests for proposals, proposals or proposers. However, notwithstanding ORS
279C.375 (1), a contracting agency may not be required to award a contract
advertised under the competitive proposal process based on price, but may award
the contract in accordance with ORS 279C.410 (8). [2003 c.794 §129; 2005 c.103 §23;
2007 c.764 §29]

279C.405
Requests for information, interest or qualifications; requirements for requests
for proposals.
(1) A contracting agency may issue a request for information, a request for
interest, a request for qualifications or other preliminary documents to obtain
information useful in the preparation or distribution of a request for
proposals.

(2)
In addition to the general requirements of ORS 279C.365, a contracting agency
preparing a request for proposals shall include:

(a)
All required contractual terms and conditions. The request for proposals also
may:

(A)
Identify those contractual terms or conditions the contracting agency reserves,
in the request for proposals, for negotiation with proposers;

(B)
Request that proposers propose contractual terms and conditions that relate to
subject matter reasonably identified in the request for proposals; and

(C)
Contain or incorporate the form and content of the contract that the
contracting agency will accept, or suggested contract terms and conditions that
nevertheless may be the subject of negotiations with proposers.

(b)
The method of contractor selection, which may include but is not limited to
award without negotiation, negotiation with the highest ranked proposer,
competitive negotiations, multiple-tiered competition designed either to
identify a class of proposers that fall within a competitive range or to
otherwise eliminate from consideration a class of lower ranked proposers, or
any combination of methods, as authorized or prescribed by rules adopted under
ORS 279A.065.

(c)
All evaluation factors that will be considered by the contracting agency when
evaluating the proposals, including the relative importance of price and any
other evaluation factors. [2003 c.794 §130; 2007 c.764 §30]

(a)
Proposals may be opened so as to avoid disclosure of contents to competing
proposers during, when applicable, the process of negotiation.

(b)
Proposals are not required to be open for public inspection until after the
notice of intent to award a contract is issued.

(2)
For each request for proposals, the contracting agency shall prepare a list of
proposals.

(3)
Notwithstanding any requirement to make proposals open to public inspection
after the contracting agency’s issuance of notice of intent to award a
contract, a contracting agency may withhold from disclosure to the public trade
secrets, as defined in ORS 192.501, and information submitted to a public body
in confidence, as described in ORS 192.502, that are contained in a proposal.
The fact that proposals are opened at a public meeting as defined in ORS
192.610 does not make their contents subject to disclosure, regardless of
whether the public body opening the proposals fails to give notice of or
provide for an executive session for the purpose of opening proposals. If a
request for proposals is canceled after proposals are received, the contracting
agency may return a proposal to the proposer that made the proposal. The
contracting agency shall keep a list of returned proposals in the file for the
solicitation.

(4)
As provided in the request for proposals, a contracting agency may conduct
discussions with proposers who submit proposals the agency has determined to be
closely competitive or to have a reasonable chance of being selected for award.
The discussions may be conducted for the purpose of clarification to ensure
full understanding of, and responsiveness to, the solicitation requirements.
The contracting agency shall accord proposers fair and equal treatment with
respect to any opportunity for discussion and revision of proposals. Revisions
of proposals may be permitted after the submission of proposals and before
award for the purpose of obtaining best and final offers. In conducting
discussions, the contracting agency may not disclose information derived from
proposals submitted by competing proposers.

(5)
When provided for in the request for proposals, the contracting agency may
employ methods of contractor selection including but not limited to award based
solely on the ranking of proposals, negotiation with the highest ranked proposer,
competitive negotiations, multiple-tiered competition designed to identify a
class of proposers that fall within a competitive range or to otherwise
eliminate from consideration a class of lower ranked proposers, or any
combination of methods, as authorized or prescribed by rules adopted under ORS
279A.065. When applicable, in any instance in which the contracting agency
determines that impasse has been reached in negotiations with a highest ranked
proposer, the contracting agency may terminate negotiations with that proposer
and commence negotiations with the next highest ranked proposer.

(6)
The cancellation of requests for proposals and the rejection of proposals shall
be in accordance with ORS 279C.395.

(7)
At least seven days before the award of a public improvement contract, unless
the contracting agency determines that seven days is impractical under rules
adopted under ORS 279A.065, the contracting agency shall issue to each proposer
or post, electronically or otherwise, a notice of intent to award.

(8)
If a public improvement contract is awarded, the contracting agency shall award
a public improvement contract to the responsible proposer whose proposal is
determined in writing to be the most advantageous to the contracting agency
based on the evaluation factors set forth in the request for proposals and,
when applicable, the outcome of any negotiations authorized by the request for
proposals. Other factors may not be used in the evaluation. [2003 c.794 §131;
2005 c.103 §24; 2007 c.764 §31]

279C.412
Competitive quotes for intermediate procurements. (1) A public
improvement contract estimated by the contracting agency not to exceed $100,000
may be awarded in accordance with intermediate procurement procedures for
competitive quotes established by rules adopted under ORS 279A.065. A contract
awarded under this section may be amended to exceed $100,000 only in accordance
with rules adopted under ORS 279A.065.

(2)
A procurement may not be artificially divided or fragmented so as to constitute
an intermediate procurement under this section or to circumvent competitive
bidding requirements under this chapter.

(3)
Intermediate procurements under this section need not be made through
competitive bidding. However, nothing in this section may be construed as
prohibiting a contracting agency from conducting a procurement that does not
exceed $100,000 under competitive bidding procedures. [2003 c.794 §132; 2007
c.764 §32]

279C.414
Requirements for competitive quotes. (1) Rules adopted under ORS 279A.065 to
govern competitive quotes shall require the contracting agency to seek at least
three informally solicited competitive price quotes from prospective
contractors. The contracting agency shall keep a written record of the sources
and amounts of the quotes received. If three quotes are not reasonably
available, fewer will suffice, but in that event the contracting agency shall
make a written record of the effort made to obtain the quotes.

(2)
If a contract is to be awarded by competitive quotes, the contracting agency
shall award the contract to the prospective contractor whose quote will best
serve the interests of the contracting agency, taking into account price as
well as any other applicable factors such as, but not limited to, experience,
specific expertise, availability, project understanding, contractor capacity
and responsibility. If an award is not made to the prospective contractor
offering the lowest price quote, the contracting agency shall make a written
record of the basis for award. [2003 c.794 §133]

(Prequalification
and Disqualification)

279C.430
Prequalification of bidders. (1) A contracting agency may adopt a
rule, resolution, ordinance or other regulation requiring mandatory
prequalification for all persons desiring to bid for public improvement
contracts that are to be let by the agency. The rule, resolution, ordinance or
other regulation authorized by this section must include the time for
submitting prequalification applications and a general description of the type
and nature of the contracts that may be let. The prequalification application
must be in writing on a standard form prescribed under the authority of ORS
279A.050.

(2)
When a contracting agency permits or requires prequalification of bidders, a
person who wishes to prequalify shall submit a prequalification application to
the contracting agency on a standard form prescribed under subsection (1) of
this section. Within 30 days after receipt of a prequalification application,
the contracting agency shall investigate the applicant as necessary to
determine if the applicant is qualified. The determination shall be made in
less than 30 days, if practicable, if the applicant requests an early decision
to allow the applicant as much time as possible to prepare a bid on a contract
that has been advertised. In making its determination, the contracting agency
shall consider only the applicable standards of responsibility listed in ORS
279C.375 (3)(b). The agency shall promptly notify the applicant whether or not
the applicant is qualified.

(3)
If the contracting agency finds that the applicant is qualified, the notice
must state the nature and type of contracts that the person is qualified to bid
on and the period of time for which the qualification is valid under the
contracting agency’s rule, resolution, ordinance or other regulation. If the
contracting agency finds the applicant is not qualified as to any contracts
covered by the rule, resolution, ordinance or other regulation, the notice must
specify the reasons found under ORS 279C.375 (3)(b) for not prequalifying the
applicant and inform the applicant of the right to a hearing under ORS 279C.445
and 279C.450.

(4)
If a contracting agency has reasonable cause to believe that there has been a
substantial change in the conditions of a prequalified person and that the
person is no longer qualified or is less qualified, the agency may revoke or
may revise and reissue the prequalification after reasonable notice to the
prequalified person. The notice shall state the reasons found under ORS
279C.375 (3)(b) for revocation or revision of the prequalification of the
person and inform the person of the right to a hearing under ORS 279C.445 and
279C.450. A revocation or revision does not apply to any public improvement
contract for which publication of an advertisement, in accordance with ORS
279C.360, commenced before the date the notice of revocation or revision was
received by the prequalified person. [2003 c.794 §123; 2005 c.103 §25]

279C.435
Effect of prequalification by Department of Transportation or Oregon Department
of Administrative Services. If a person is prequalified with the Department of
Transportation or with the Oregon Department of Administrative Services, the
person is rebuttably presumed qualified with any other contracting agency for
the same kind of work. When qualifying for the same kind of work with another
contracting agency, the person may submit proof of the prequalification in lieu
of a prequalification application as required by ORS 279C.430. [2003 c.794 §128]

279C.440
Disqualification from consideration for award of contracts. (1)(a) A
contracting agency may disqualify a person from consideration for award of the
contracting agency’s contracts for the reasons listed in subsection (2) of this
section after providing the person with notice and a reasonable opportunity to
be heard.

(b)
In lieu of the disqualification process described in paragraph (a) of this
subsection, a contracting agency contracting for a public improvement may
petition the Construction Contractors Board to disqualify a person from
consideration for award of the contracting agency’s public improvement
contracts for the reasons listed in subsection (2) of this section. The
Construction Contractors Board shall provide the person with notice and a
reasonable opportunity to be heard.

(c)
A contracting agency or the Construction Contractors Board may not disqualify a
person under this section for a period of more than three years.

(2)
A person may be disqualified from consideration for award of a contracting
agency’s contracts for any of the following reasons:

(a)
The person has been convicted of a criminal offense as an incident in obtaining
or attempting to obtain a public or private contract or subcontract, or in the
performance of such contract or subcontract.

(b)
The person has been convicted under state or federal statutes of embezzlement,
theft, forgery, bribery, falsification or destruction of records, receiving
stolen property or any other offense indicating a lack of business integrity or
business honesty that currently, seriously and directly affects the person’s
responsibility as a contractor.

(c)
The person has been convicted under state or federal antitrust statutes.

(d)
The person has committed a violation of a contract provision that is regarded
by the contracting agency or the Construction Contractors Board to be so
serious as to justify disqualification. A violation may include but is not
limited to a failure to perform the terms of a contract or an unsatisfactory
performance in accordance with the terms of the contract. However, a failure to
perform or an unsatisfactory performance caused by acts beyond the control of
the contractor may not be considered to be a basis for disqualification.

(e)
The person does not carry workers’ compensation or unemployment insurance as
required by statute.

(3)
A contracting agency or the Construction Contractors Board shall issue a
written decision to disqualify a person under this section. The decision shall:

(a)
State the reasons for the action taken; and

(b)
Inform the disqualified person of the appeal right of the person under:

(A)
ORS 279C.445 and 279C.450 if the decision to disqualify was issued by a
contracting agency; or

(B)
ORS chapter 183 if the decision to disqualify was issued by the Construction
Contractors Board.

(4)
A copy of the decision issued under subsection (3) of this section must be
mailed or otherwise furnished immediately to the disqualified person. [2003
c.794 §122]

279C.445
Appeal of disqualification. Any person who wishes to appeal disqualification
shall, within three business days after receipt of notice of disqualification,
notify the contracting agency that the person appeals the disqualification.
Immediately upon receipt of the notice of appeal:

(1)
A state contracting agency shall notify the Director of the Oregon Department
of Administrative Services.

(2)
All contracting agencies other than state contracting agencies shall notify the
appropriate local contract review board. [2003 c.794 §124]

279C.450
Appeal procedure for decision to deny, revoke or revise prequalification;
hearing; costs; judicial review. (1) An appeal from a contracting agency’s
disqualification or denial, revocation or revision of a prequalification is
subject to the procedures set forth in this section and is not subject to ORS
chapter 183 except when specifically provided in this section.

(2)
Promptly upon receiving notice of appeal from a contracting agency as provided
in ORS 279C.445, the Director of the Oregon Department of Administrative
Services or the local contract review board shall notify the person appealing
and the contracting agency of the time and place of the hearing. The director
or board shall conduct the hearing and decide the appeal within 30 days after
receiving the notification from the contracting agency unless the person
appealing and the contracting agency mutually agree to a different period of
time. The director or board shall set forth in writing the reasons for the
decision.

(3)
In the hearing the director or board shall consider de novo the notice of
disqualification or denial, revocation or revision of a prequalification, the
reasons listed in ORS 279C.440 (2) on which the contracting agency based the
disqualification or the standards of responsibility listed in ORS 279C.375
(3)(b) on which the contracting agency based the denial, revocation or revision
of the prequalification and any evidence provided by the parties. In all other
respects, a hearing before the director shall be conducted in the same manner
as a contested case under ORS 183.417 (1) to (4) and (7), 183.425, 183.440,
183.450 and 183.452.

(4)
The director may allocate the director’s cost for the hearing between the
person appealing and the contracting agency whose disqualification or
prequalification decision is being appealed. The director shall base the
allocation upon facts the director finds in the record and states in the final
order that, in the director’s opinion, warrant such allocation of the costs. If
the final order does not allocate the director’s costs for the hearing, the
costs must be paid as follows:

(a)
If the director upholds the decision to disqualify or deny, revoke or revise a
prequalification of a person, the person appealing the disqualification or prequalification
decision shall pay the director’s costs.

(b)
If the director reverses the decision to disqualify or deny, revoke or revise a
prequalification of a person, the contracting agency whose disqualification or
prequalification decision is the subject of the appeal shall pay the director’s
costs.

(5)
The decision of the director or board may be reviewed only upon a petition,
filed within 15 days after the date of the decision, in the circuit court of
the county in which the director or board has the director’s or the board’s
principal office. The circuit court shall reverse or modify the decision only
if the court finds:

(a)
The decision was obtained through corruption, fraud or undue means.

(b)
There was evident partiality or corruption on the part of the director or board
or any of the members of the board.

(c)
There was an evident material miscalculation of figures or an evident material
mistake in the description of a person, thing or property referred to in the
decision.

(6)
The procedure provided in this section is the exclusive means of judicial
review of the decision of the director or board. The judicial review provisions
of ORS 183.480, the writs of review and mandamus, as provided in ORS chapter
34, and other legal, declaratory and injunctive remedies are not available.

(7)
The circuit court may, in the court’s discretion, stay the letting of the
contract that is the subject of the petition in the same manner as the court
may issue a stay in a suit in equity. If the court determines that an improper
disqualification or denial, revocation or revision of a prequalification
occurred and the contract has been let, the court may proceed to take evidence
to determine the damages, if any, the petitioner suffered and award such
damages as the court may find as a judgment against the director or board. The
court may award costs and attorney fees to the prevailing party. [2003 c.794 §125;
2005 c.103 §26; 2007 c.288 §13; 2009 c.149 §1]

(Remedies)

279C.460
Action by or on behalf of adversely affected bidder or proposer; exception for
personal services contract. (1) Any bidder or proposer adversely affected or
any trade association of construction contractors acting on behalf of a member
of the association to protect interests common to construction contractor
members may commence an action in the circuit court for the county where the
principal offices of a contracting agency are located, for the purpose of
requiring compliance with, or prevention of violations of, ORS 279C.300 to
279C.470 or to determine the applicability of ORS 279C.300 to 279C.470 to
matters or decisions of the contracting agency.

(2)
The court may order such equitable relief as the court considers appropriate in
the circumstances. In addition to or in lieu of any equitable relief, the court
may award an aggrieved bidder or proposer any damages suffered by the bidder or
proposer as a result of violations of ORS 279C.300 to 279C.470 for the
reasonable cost of preparing and submitting a bid or proposal. A decision of
the contracting agency may not be voided if other equitable relief is
available.

(3)
If the contracting agency is successful in defending the contracting agency’s
actions against claims of violation or potential violation of ORS 279C.300 to
279C.470, the court may award to the aggrieved contracting agency any damages
suffered as a result of the court action.

(4)
The court may order payment of reasonable attorney fees and costs on trial and
on appeal to a successful party in an action brought under this section.

279C.465
Action against successful bidder; amount of damages; when action to be
commenced; defenses.
(1) Any person that loses a competitive bid or proposal for a contract
involving the construction, repair, remodeling, alteration, conversion,
modernization, improvement, rehabilitation, replacement or renovation of a
building or structure may bring an action for damages against another person
who is awarded the contract for which the bid or proposal was made if the
person making the losing bid or proposal can establish that the other person
knowingly violated ORS 279C.840, 656.017, 657.505, 701.021 or 701.026 while
performing the work under the contract, or knowingly failed to pay to the
Department of Revenue all sums withheld from employees under ORS 316.167.

(2)
A person bringing an action under this section must establish a violation of
ORS 279C.840, 316.167, 656.017, 657.505, 701.021 or 701.026 by a preponderance
of the evidence.

(3)
Upon establishing that the violation occurred, the person shall recover, as
liquidated damages, 10 percent of the total amount of the contract or $5,000,
whichever is greater.

(4)
In any action under this section, the prevailing party is entitled to an award
of reasonable attorney fees.

(5)
An action under this section must be commenced within two years of the
substantial completion of the construction, repair, remodeling, alteration,
conversion, modernization, improvement, rehabilitation, replacement or
renovation. For the purposes of this subsection, “substantial completion” has
the meaning given that term in ORS 12.135.

(6)
A person may not recover any amounts under this section if the defendant in the
action establishes by a preponderance of the evidence that the plaintiff:

(a)
Was in violation of ORS 701.021 or 701.026 at the time of making the bid or
proposal on the contract;

(b)
Was in violation of ORS 316.167, 656.017 or 657.505 with respect to any
employees of the plaintiff as of the time of making the bid or proposal on the
contract; or

(c)
Was in violation of ORS 279C.840 with respect to any contract performed by the
plaintiff within one year before making the bid or proposal on the contract at
issue in the action. [2003 c.794 §135; 2007 c.836 §44]

279C.470
Compensation for contractor on contract declared void by court; exceptions;
applicability.
(1) If a court determines that a public improvement contract is void because
the contracting agency letting the contract failed to comply with any statutory
or regulatory competitive bidding or other procurement requirements, and the
contractor entered into the contract without intentionally violating the laws
regulating public improvement contracts, then, unless the court determines that
substantial injustice would result, the contractor is entitled to reimbursement
for work performed under the contract as follows:

(a)
If the work under the public improvement contract is substantially complete,
the contracting agency shall ratify the contract.

(b)
If the work under the public improvement contract is not substantially
complete, the contracting agency shall ratify the contract and the contract
shall be deemed terminated. Upon termination, the contractor shall be paid in
accordance with ORS 279C.660, unless the court determines that payment under
ORS 279C.660 would be a substantial injustice to the contracting agency or the
contractor, in which case the contractor shall be paid as the court deems
equitable.

(c)
For the purposes of this section, a ratified contract shall be deemed valid,
binding and legally enforceable, and the contractor’s payment and performance
bonds shall remain in full force and effect.

(2)
Notwithstanding subsection (1) of this section, if a court determines that a
public improvement contract is void as a result of fraudulent or criminal acts
or omissions of the contractor or of both the contracting agency letting the
contract and the contractor, the contractor is not entitled to reimbursement
for work performed under the contract.

(3)
This section does not apply to a public improvement contract if:

(a)
The contracting agency’s employee that awarded the public improvement contract
did not have the authority to do so under law, ordinance, charter, contract or
agency rule; or

(b)
Payment is otherwise prohibited by Oregon law.

(4)
The contractor and all subcontractors under a public improvement contract are
prohibited from asserting that the public improvement contract is void for any
reason described in this section. [2003 c.794 §136]

CONSTRUCTION
CONTRACTS GENERALLY

(Required
Contract Conditions)

279C.500
“Person” defined.
As used in ORS 279C.500 to 279C.530, unless the context otherwise requires, “person”
includes the State Accident Insurance Fund Corporation and the Department of
Revenue. [2003 c.794 §137]

(a)
Make payment promptly, as due, to all persons supplying to the contractor labor
or material for the performance of the work provided for in the contract.

(b)
Pay all contributions or amounts due the Industrial Accident Fund from the
contractor or subcontractor incurred in the performance of the contract.

(c)
Not permit any lien or claim to be filed or prosecuted against the state or a
county, school district, municipality, municipal corporation or subdivision
thereof, on account of any labor or material furnished.

(d)
Pay to the Department of Revenue all sums withheld from employees under ORS
316.167.

(2)
In addition to the conditions specified in subsection (1) of this section,
every public improvement contract shall contain a condition that the contractor
shall demonstrate that an employee drug testing program is in place. [2003
c.794 §138; 2005 c.103 §27]

279C.510
Demolition contracts to require material salvage; lawn and landscape
maintenance contracts to require composting or mulching. (1) Every
public improvement contract for demolition shall contain a condition requiring
the contractor to salvage or recycle construction and demolition debris, if
feasible and cost-effective.

(2)
Every public improvement contract for lawn and landscape maintenance shall
contain a condition requiring the contractor to compost or mulch yard waste
material at an approved site, if feasible and cost-effective. [2003 c.794 §139]

279C.515
Conditions concerning payment of claims by public officers, payment to persons
furnishing labor or materials and complaints. (1) Every public improvement
contract must contain a clause or condition that, if the contractor fails,
neglects or refuses to pay promptly a person’s claim for labor or services that
the person provides to the contractor or a subcontractor in connection with the
public improvement contract as the claim becomes due, the proper officer that
represents the state or a county, school district, municipality or municipal
corporation or a subdivision of the state, county, school district,
municipality or municipal corporation may pay the amount of the claim to the
person that provides the labor or services and charge the amount of the payment
against funds due or to become due the contractor by reason of the contract.

(2)
Every public improvement contract must contain a clause or condition that, if
the contractor or a first-tier subcontractor fails, neglects or refuses to pay
a person that provides labor or materials in connection with the public
improvement contract within 30 days after receiving payment from the
contracting agency or a contractor, the contractor or first-tier subcontractor
owes the person the amount due plus interest charges that begin at the end of
the 10-day period within which payment is due under ORS 279C.580 (4) and that
end upon final payment, unless payment is subject to a good faith dispute as
defined in ORS 279C.580. The rate of interest on the amount due is nine percent
per annum. The amount of interest may not be waived.

(3)
Every public improvement contract and every contract related to the public
improvement contract must contain a clause or condition that, if the contractor
or a subcontractor fails, neglects or refuses to pay a person that provides
labor or materials in connection with the public improvement contract, the
person may file a complaint with the Construction Contractors Board, unless
payment is subject to a good faith dispute as defined in ORS 279C.580.

(4)
Paying a claim in the manner authorized in this section does not relieve the
contractor or the contractor’s surety from obligation with respect to an unpaid
claim. [2003 c.794 §140; 2005 c.103 §28; 2012 c.4 §1]

279C.520
Condition concerning hours of labor. (1) Every public contract subject to
this chapter must contain a condition that a person may not be employed for
more than 10 hours in any one day, or 40 hours in any one week, except in cases
of necessity, emergency or when the public policy absolutely requires it, and
in such cases, except in cases of contracts for personal services as defined in
ORS 279C.100, the employee shall be paid at least time and a half pay:

(a)(A)
For all overtime in excess of eight hours in any one day or 40 hours in any one
week when the work week is five consecutive days, Monday through Friday; or

(B)
For all overtime in excess of 10 hours in any one day or 40 hours in any one
week when the work week is four consecutive days, Monday through Friday; and

(b)
For all work performed on Saturday and on any legal holiday specified in ORS
279C.540.

(2)
An employer must give notice in writing to employees who work on a public
contract, either at the time of hire or before commencement of work on the
contract, or by posting a notice in a location frequented by employees, of the
number of hours per day and days per week that the employees may be required to
work.

(3)
In the case of contracts for personal services as defined in ORS 279C.100, the
contract shall contain a provision that the employee shall be paid at least
time and a half for all overtime worked in excess of 40 hours in any one week,
except for individuals under personal services contracts who are excluded under
ORS 653.010 to 653.261 or under 29 U.S.C. 201 to 209 from receiving overtime.

(4)
In the case of a contract for services at a county fair or for other events
authorized by a county fair board, the contract must contain a provision that
employees must be paid at least time and a half for work in excess of 10 hours
in any one day or 40 hours in any one week. An employer shall give notice in
writing to employees who work on such a contract, either at the time of hire or
before commencement of work on the contract, or by posting a notice in a
location frequented by employees, of the number of hours per day and days per
week that employees may be required to work.

(5)(a)
Except as provided in subsection (4) of this section, contracts for services
must contain a provision that requires that persons employed under the
contracts shall receive at least time and a half pay for work performed on the
legal holidays specified in a collective bargaining agreement or in ORS
279C.540 (1)(b)(B) to (G) and for all time worked in excess of 10 hours in any
one day or in excess of 40 hours in any one week, whichever is greater.

(b)
An employer shall give notice in writing to employees who work on a contract
for services, either at the time of hire or before commencement of work on the
contract, or by posting a notice in a location frequented by employees, of the
number of hours per day and days per week that the employees may be required to
work. [2003 c.794 §141; 2005 c.103 §29]

279C.525
Provisions concerning environmental and natural resources laws; remedies. (1)
Solicitation documents for a public improvement contract shall make specific
reference to federal, state and local agencies that have enacted ordinances,
rules or regulations dealing with the prevention of environmental pollution and
the preservation of natural resources that affect the performance of the
contract. If the successful bidder awarded the project is delayed or must
undertake additional work by reason of existing ordinances, rules or
regulations of agencies not cited in the public improvement contract or due to
the enactment of new or the amendment of existing statutes, ordinances, rules
or regulations relating to the prevention of environmental pollution and the
preservation of natural resources occurring after the submission of the
successful bid, the contracting agency may:

(a)
Terminate the contract;

(b)
Complete the work itself;

(c)
Use nonagency forces already under contract with the contracting agency;

(d)
Require that the underlying property owner be responsible for cleanup;

(e)
Solicit bids for a new contractor to provide the necessary services under the
competitive bid requirements of this chapter; or

(f)
Issue the contractor a change order setting forth the additional work that must
be undertaken.

(2)
In addition to the obligation imposed under subsection (1) of this section to
refer to federal, state and local agencies with ordinances, rules or
regulations dealing with the prevention of environmental pollution and the
preservation of natural resources, a solicitation document must also make
specific reference to known conditions at the construction site that may
require the successful bidder to comply with the ordinances, rules or
regulations identified under subsection (1) of this section.

(3)
If the successful bidder encounters a condition not referred to in the
solicitation documents, not caused by the successful bidder and not
discoverable by a reasonable prebid visual site inspection, and the condition
requires compliance with the ordinances, rules or regulations referred to under
subsection (1) of this section, the successful bidder shall immediately give
notice of the condition to the contracting agency.

(4)
Except in the case of an emergency and except as may otherwise be required by
any environmental or natural resource ordinance, rule or regulation, the
successful bidder may not commence work nor incur any additional job site costs
in regard to the condition encountered and described in subsection (3) of this
section without written direction from the contracting agency.

(5)
Upon request by the contracting agency, the successful bidder shall estimate
the emergency or regulatory compliance costs as well as the anticipated delay
and costs resulting from the encountered condition. This cost estimate shall be
promptly delivered to the contracting agency for resolution.

(6)
Within a reasonable period of time following delivery of an estimate under
subsection (5) of this section, the contracting agency may:

(a)
Terminate the contract;

(b)
Complete the work itself;

(c)
Use nonagency forces already under contract with the contracting agency;

(d)
Require that the underlying property owner be responsible for cleanup;

(e)
Solicit bids for a new contractor to provide the necessary services under the
competitive bid requirements of this chapter; or

(f)
Issue the contractor a change order setting forth the additional work that must
be undertaken.

(7)(a)
If the contracting agency chooses to terminate the contract under subsection
(1)(a) or (6)(a) of this section, the successful bidder shall be entitled to
all costs and expenses incurred to the date of termination, including overhead
and reasonable profits, on the percentage of the work completed. The
contracting agency shall have access to the contractor’s bid documents when
making the contracting agency’s determination of the additional compensation
due to the contractor.

(b)
If the contracting agency causes work to be done by another contractor under
subsection (1)(c) or (e) or (6)(c) or (e) of this section, the initial
contractor may not be held liable for actions or omissions of the other
contractor.

(c)
The change order under subsection (1)(f) or (6)(f) of this section shall
include the appropriate extension of contract time and compensate the contractor
for all additional costs, including overhead and reasonable profits, reasonably
incurred as a result of complying with the applicable statutes, ordinances,
rules or regulations. The contracting agency shall have access to the
contractor’s bid documents when making the contracting agency’s determination
of the additional compensation due to the contractor.

(8)
Notwithstanding subsections (1) to (7) of this section, a contracting agency:

(a)
May allocate all or a portion of the known environmental and natural resource
risks to a contractor by listing such environmental and natural resource risks
with specificity in the solicitation documents; and

(b)
In a local improvement district, may allocate all or a portion of the known and
unknown environmental and natural resource risks to a contractor by so stating
in the solicitation documents. [2003 c.794 §142]

279C.527
Inclusion of amount for green energy technology in public improvement contract;
written determination of appropriateness; exemptions and limitations. (1) As used in
this section and in ORS 279C.528:

(a)(A)
“Green energy technology” means a system that employs:

(i)
Solar or geothermal energy directly for space or water heating or to generate
electricity; or

(ii)
Building design that uses solar energy passively to reduce energy use from
other sources by at least 20 percent from a level required under ORS 276.900 to
276.915 or achieved in buildings constructed according to state building code
standards that the Department of Consumer and Business Services approves under
ORS 455.496.

(B)
“Green energy technology” does not include a system that:

(i)
Uses water, groundwater or the ground as a heat source at temperatures less
than 140 degrees Fahrenheit; or

(ii)
Incorporates solar energy indirectly into other methods for generating energy,
such as from the action of waves on water, from hydroelectric facilities or
from wind-powered turbines.

(b)
“Public building” means a building that a public body, as defined in ORS
174.109, owns or controls, and that is:

(A)
Used or occupied by employees of the public body; or

(B)
Used for conducting public business.

(2)(a)
Except as otherwise provided in this section, a public improvement contract for
the construction of a public building or for the reconstruction or major
renovation of a public building, if the cost of the reconstruction or major
renovation exceeds 50 percent of the value of the public building, shall
contain and reserve an amount equal to at least 1.5 percent of the total
contract price for the purpose of including appropriate green energy technology
as part of the construction, reconstruction or major renovation of the public
building.

(b)
A public improvement contract to construct, reconstruct or renovate a public
building may provide for constructing green energy technology at a site that is
located away from the site of the public building if:

(A)
Constructing green energy technology away from the site of the public building
and using the energy from the green energy technology at the site of the public
building is more cost-effective, taking into account additional costs
associated with transmitting generated energy to the site of the public
building, than is constructing and using green energy technology at the site of
the public building;

(B)
The green energy technology that is located away from the site of the public
building is located within this state and in the same county as, or in a county
adjacent to, the site of the public building; and

(C)
The public improvement contract provides that all of the moneys for
constructing green energy technology away from the site of the public building
must fund new energy generating capacity that does not replace or constitute a
purchase and use of energy generated from green energy technology that:

(i)
Employs solar energy and that existed on the date that the original building
permit for the public building was issued; or

(ii)
Employs geothermal energy and for which construction was completed before
January 1, 2013.

(c)
In making the determination required under paragraph (b)(A) of this subsection,
a contracting agency shall:

(A)
Compare the costs of constructing green energy technology that employs solar
energy at the site of the public building only with the corresponding costs of
green energy technology that employs solar energy at a location away from the
site of the public building; and

(B)
Compare the costs of green energy technology that employs geothermal energy at
the site of the public building only with the corresponding costs of green
energy technology that employs geothermal energy at a location away from the
site of the public building.

(3)
Before entering into a public improvement contract described in subsection (2)
of this section, a contracting agency shall prepare a written determination of
whether including green energy technology as part of the construction,
reconstruction or major renovation of the public building is appropriate. The
contracting agency shall list in the determination the total contract price and
specify the amount the agency intends to expend on including green energy
technology as part of the construction, reconstruction or major renovation. The
State Department of Energy shall develop a form that a contracting agency may
use to prepare the written determination described in this subsection.

(4)(a)
If the contracting agency determines that green energy technology is not
appropriate for the public building, subsection (2) of this section does not
apply to the public improvement contract. A contracting agency’s determination
under this paragraph must consider whether constructing green energy technology
at the site of the public building is appropriate and whether constructing
green energy technology away from the site of the public building and in
accordance with subsection (2)(b) and (c) of this section is appropriate.

(b)
If subsection (2) of this section does not apply to the public improvement
contract:

(A)
The contracting agency shall spend an amount equal to at least 1.5 percent of
the total contract price to include appropriate green energy technology as part
of a future public building project; and

(B)
The amount the contracting agency spends on the future public building project
in accordance with subparagraph (A) of this paragraph is in addition to any
amount required under subsection (2) of this section for including appropriate
green energy technology as part of the future public building project.

(5)
Subsection (4)(b) of this section does not apply to a public improvement
contract for which state funds are not directly or indirectly used.

(6)(a)
This section does not exempt an authorized state agency, as defined in ORS
276.905, from complying with ORS 276.900 to 276.915, except that an authorized
state agency, without complying with ORS 276.900 to 276.915, may determine that
green energy technology is appropriate to include as part of the construction,
reconstruction or major renovation of a public building.

(b)
A contracting agency may not use an amount described in subsection (4)(b) of
this section to comply with requirements set forth in ORS 276.900 to 276.915 or
with a state building code standard that the Department of Consumer and
Business Services approves under ORS 455.496.

Note: 279C.527 and
279C.528 were added to and made a part of 279C.005 to 279C.670 by legislative
action but were not added to any smaller series therein. See Preface to Oregon
Revised Statutes for further explanation.

279C.528
State Department of Energy requirements and specifications; record keeping
requirements; rules.
(1) Each contracting agency, in soliciting, awarding and administering public
improvement contracts that are subject to ORS 279C.527, is subject to rules the
State Department of Energy adopts that include, but are not limited to,
requirements and specifications for:

(a)
Using particular green energy technologies in public improvements;

(b)
Determining the cost-effectiveness of green energy technologies;

(c)
Submitting documents required under ORS 279C.527 to the department for review;
and

(d)
Determining whether a structure is a public building subject to the requirements
of ORS 279C.527.

(2)(a)
Each contracting agency shall collect and maintain information concerning the
contracting agency’s compliance with ORS 279C.527, which must include, at a
minimum:

(A)
Records that show how the contracting agency disposed of moneys the contracting
agency reserved for including appropriate green energy technology as part of
constructing, reconstructing or renovating a public building;

(B)
An identification of each public improvement contract for which the contracting
agency spent moneys reserved for including appropriate green technology as part
of constructing, reconstructing or renovating a public building;

(C)
An identification of each public improvement contract for which the contracting
agency determined that including green technology as part of constructing,
reconstructing or renovating a public building was not appropriate;

(D)
An identification of the account or fund into which the contracting agency
deposited moneys the contracting agency reserved for, but did not spend on,
including appropriate green technology as part of constructing, reconstructing
or renovating a public building; and

(E)
An identification of each public improvement contract that uses moneys the
contracting agency did not spend in a previous public improvement contract for
including appropriate green energy technology as part of constructing,
reconstructing or renovating a public building.

(b)
Each contracting agency shall compile the information the contracting agency
collected under paragraph (a) of this subsection and report the information to
the department at times and in a manner the department specifies by rule.

(c)
The department shall:

(A)
Compile and summarize the information the department receives under paragraph
(b) of this subsection and, in the department’s compilation and summary,
specifically:

(i)
Identify contracting agencies that have not complied with the requirements of
ORS 279C.527;

(ii)
Identify public improvement contracts for which contracting agencies have
determined that including green energy technology as part of constructing,
reconstructing or renovating a public building was not appropriate; and

(iii)
Identify public improvement contracts that use moneys a contracting agency did
not spend in a previous public improvement contract on including appropriate
green energy technology as part of constructing, reconstructing or renovating a
public building.

(B)
Deliver annually to the Legislative Assembly, on or before the date on which
each regular session of the Legislative Assembly begins, a report concerning
contracting agency compliance with ORS 279C.527 that includes the compilation
and summary the department prepared under subparagraph (A) of this paragraph. [2007
c.310 §3; 2012 c.83 §2; 2013 c.612 §2]

Note: See note under
279C.527.

279C.530
Condition concerning payment for medical care and providing workers’
compensation.
(1) Every public improvement contract shall contain a condition that the
contractor shall promptly, as due, make payment to any person, copartnership,
association or corporation furnishing medical, surgical and hospital care
services or other needed care and attention, incident to sickness or injury, to
the employees of the contractor, of all sums that the contractor agrees to pay
for the services and all moneys and sums that the contractor collected or
deducted from the wages of employees under any law, contract or agreement for
the purpose of providing or paying for the services.

(2)
Every public contract subject to this chapter shall contain a clause or
condition that all subject employers working under the contract are either
employers that will comply with ORS 656.017 or employers that are exempt under
ORS 656.126. [2003 c.794 §143; 2005 c.103 §30]

279C.535
Condition concerning steel material; rules. The Department of Transportation
shall adopt rules to require that public improvement contracts entered into by
the department include a price escalation and de-escalation clause relating to
steel material. As used in this section, “steel material” includes structural
and reinforcing steel, steel studs, sheet piling, guardrail, ductile iron pipe
and other steel products used for the construction, reconstruction or major
renovation of a road or highway. [2005 c.557 §6]

Note: Sections 1 and
2, chapter 606, Oregon Laws 2013, provide:

Sec.
1. Task Force on Apprenticeship in State Contracting. (1) The Task
Force on Apprenticeship in State Contracting is established, consisting of 14
members appointed as follows:

(a)
The President of the Senate shall appoint two members from among members of the
Senate, ensuring that the appointment includes one member from each caucus, and
shall designate one of the members as a co-chair of the task force.

(b)
The Speaker of the House of Representatives shall appoint two members from
among members of the House of Representatives, ensuring that the appointment
includes one member from each caucus, and shall designate one of the members as
a co-chair of the task force.

(c)
The President of the Senate and the Speaker of the House of Representatives, by
mutual agreement, shall appoint eight members as follows:

(A)
One member representing a general contractor that has performed public
contracts for a public agency in this state and that has a collective bargaining
agreement with the contractor’s employees;

(B)
One member representing a general contractor that has performed public
contracts for a public agency in this state and that does not have a collective
bargaining agreement with the contractor’s employees;

(C)
One member representing a subcontractor that has performed work for a
contractor under a public contract in this state and that has a collective
bargaining agreement with the contractor’s employees;

(D)
One member representing a subcontractor that has performed work for a
contractor under a public contract in this state and that does not have a
collective bargaining agreement with the subcontractor’s employees; and

(E)
Four members who are representatives of labor organizations or other representatives
of persons who are engaged in apprenticeable occupations.

(d)
The Governor shall appoint two members as follows:

(A)
One member who is an employee of a state contracting agency; and

(B)
One member who is an employee of a local contracting agency.

(2)
The task force shall:

(a)
Evaluate and make recommendations concerning apprenticeship utilization
standards for state contracting agencies, in the course of which the task force
shall consider:

(A)
The economic impact of an apprenticeship utilization standard on contractors,
the fiscal impact on state contracting agencies and potential strategies to
minimize the economic and fiscal impacts;

(B)
Incentives and disincentives that would lead contractors to comply with an
apprenticeship utilization standard;

(C)
Lowering, over a period of time, the contract price at which the apprenticeship
utilization standard would apply to a public contract;

(D)
Increasing, over a period of time, the percentage of the total work hours that
workers in apprenticeable occupations perform on a public improvement that
apprentices must perform;

(E)
Strategies for creating more diversity within the apprenticeship workforce;

(F)
Methods for monitoring compliance with the apprenticeship utilization standard;

(G)
Identifying projects that may be exempted from the apprenticeship utilization
standard, and the circumstances in which the project may be exempted, which may
include the location or nature of the project; and

(H)
Whether and how the apprenticeship utilization standard may be extended to
other public agencies.

(b)
Review and evaluate apprenticeship utilization standards and programs that are
in use by the Department of Transportation and in the State of Washington.

(3)(a)
The task force may consult with experts, hear testimony from affected persons
and otherwise collect data and information necessary to carry out the task
force’s duties.

(b)
The co-chairs of the task force may expand the task force’s membership if the
co-chairs deem an expansion necessary.

(4)
A majority of the members of the task force constitutes a quorum for the
transaction of business.

(5)
Official action by the task force requires the approval of a majority of the
members of the task force.

(6)
If there is a vacancy for any cause, the appointing authority shall make an
appointment to become immediately effective.

(7)
The task force shall meet at times and places specified by the call of the
co-chairs or of a majority of the members of the task force.

(8)
The task force may adopt rules necessary for the operation of the task force.

(9)(a)
The task force shall submit an initial report in the manner provided by ORS
192.245, and may include recommendations for legislation, to an interim
committee of the Legislative Assembly related to workforce development or
public contracting no later than December 1, 2013.

(b)
The task force shall submit a final report in the manner provided by ORS
192.245, and may include additional recommendations for legislation, to an
interim committee of the Legislative Assembly related to workforce development
or public contracting no later than November 1, 2014.

(10)
Members of the task force who are not members of the Legislative Assembly are
not entitled to compensation or reimbursement for expenses the members incur in
performing the members’ official duties. Members of the task force who are
members of the Legislative Assembly shall receive compensation and expenses as
provided in ORS 171.072.

(11)
All agencies of state government, as defined in ORS 174.111, are directed to
assist the task force in the performance of its duties and, to the extent
permitted by laws relating to confidentiality, to furnish such information and
advice as the members of the task force consider necessary to perform their
duties. [2013 c.606 §1]

Sec.
2.
Section 1 of this 2013 Act is repealed on the date of the convening of the 2015
regular session of the Legislative Assembly as specified in ORS 171.010
[February 2, 2015]. [2013 c.606 §2]

(Hours
of Labor)

279C.540
Maximum hours of labor on public contracts; holidays; exceptions; liability to
workers; rules.
(1) When labor is employed by the state or a county, school district,
municipality, municipal corporation or subdivision thereof through a
contractor, a person may not be required or permitted to labor more than 10
hours in any one day, or 40 hours in any one week, except in cases of necessity
or emergency or when the public policy absolutely requires it, in which event,
the person so employed for excessive hours shall receive at least time and a
half pay:

(a)(A)
For all overtime in excess of eight hours in any one day or 40 hours in any one
week when the work week is five consecutive days, Monday through Friday; or

(B)
For all overtime in excess of 10 hours in any one day or 40 hours in any one
week when the work week is four consecutive days, Monday through Friday; and

(b)
For all work performed on Saturday and on the following legal holidays:

(A)
Each Sunday.

(B)
New Year’s Day on January 1.

(C)
Memorial Day on the last Monday in May.

(D)
Independence Day on July 4.

(E)
Labor Day on the first Monday in September.

(F)
Thanksgiving Day on the fourth Thursday in November.

(G)
Christmas Day on December 25.

(2)
An employer shall give notice in writing to employees who perform work under
subsection (1) of this section, either at the time of hire or before
commencement of work on the contract, or by posting a notice in a location
frequented by employees, of the number of hours per day and days per week that
employees may be required to work.

(3)
For the purpose of this section, each time a legal holiday, other than Sunday,
listed in subsection (1) of this section falls on Sunday, the succeeding Monday
shall be recognized as a legal holiday. Each time a legal holiday listed in
subsection (1) of this section falls on Saturday, the preceding Friday shall be
recognized as a legal holiday.

(4)
Subsections (1) to (3) of this section do not apply to a public improvement
contract or a contract for services if the contractor is a party to a
collective bargaining agreement in effect with any labor organization.

(5)
When specifically agreed to under a written labor-management negotiated labor
agreement, an employee may be paid at least time and a half pay for work
performed on any legal holiday specified in ORS 187.010 and 187.020 that is not
listed in subsection (1) of this section.

(6)
This section does not apply to contracts for personal services as defined in
ORS 279C.100, provided that persons employed under such contracts shall receive
at least time and a half pay for work performed on the legal holidays specified
in subsection (1)(b)(B) to (G) of this section and for all overtime worked in
excess of 40 hours in any one week, except for individuals under personal
services contracts who are excluded under ORS 653.010 to 653.261 or under 29
U.S.C. 201 to 209 from receiving overtime.

(7)
Subsections (1) and (2) of this section do not apply to contracts for services
at a county fair or for other events authorized by a county fair board if
persons employed under the contract receive at least time and a half for work
in excess of 10 hours in any one day or 40 hours in any one week.

(8)(a)
Subsections (1) and (2) of this section do not apply to contracts for services.
However, persons employed under such contracts shall receive at least time and
a half pay for work performed on the legal holidays specified in a collective
bargaining agreement or in subsection (1)(b)(B) to (G) of this section and for
all time worked in excess of 10 hours in any one day or in excess of 40 hours
in any one week, whichever is greater.

(b)
An employer shall give notice in writing to employees who work on a contract
for services, either at the time of hire or before commencement of work on the
contract, or by posting a notice in a location frequented by employees, of the
number of hours per day and days per week that the employees may be required to
work.

(9)
Any contractor or subcontractor or contractor’s or subcontractor’s surety that
violates the provisions of this section is liable to the affected employees in
the amount of their unpaid overtime wages and in an additional amount equal to
the unpaid overtime wages as liquidated damages. If the violation results from
willful falsification of payroll records, the contractor or subcontractor or
contractor’s or subcontractor’s surety is liable to the affected employees in
the amount of their unpaid overtime wages and an additional amount equal to
twice the unpaid overtime wages as liquidated damages.

(10)
An action to enforce liability to employees under subsection (9) of this
section may be brought as an action on the contractor’s payment bond as
provided for in ORS 279C.610.

(11)
In accordance with ORS chapter 183, the Commissioner of the Bureau of Labor and
Industries may adopt rules to carry out the provisions of this section. [2003
c.794 §144; 2005 c.103 §31]

279C.545
Time limitation on claim for overtime; posting of circular by contractor. When labor is
employed by the state or a county, school district, municipality, municipal
corporation or subdivision thereof through another as a contractor, any worker
employed by the contractor shall be foreclosed from the right to collect for
any overtime provided in ORS 279C.540 unless a claim for payment is filed with
the contractor within 90 days from the completion of the contract, providing
the contractor has:

(1)
Caused a circular clearly printed in boldfaced 12-point type and containing a
copy of this section to be posted in a prominent place alongside the door of
the timekeeper’s office or in a similar place that is readily available and
freely visible to workers employed on the work.

(2)
Maintained the circular continuously posted from the inception to the
completion of the contract on which workers are or have been employed. [2003
c.794 §145]

(Retainage
and Payments)

279C.550
“Retainage” defined.
As used in ORS 279C.550 to 279C.570, “retainage” means the difference between
the amount earned by a contractor on a public improvement contract and the
amount paid on the contract by the contracting agency. [2003 c.794 §146; 2005
c.103 §32]

279C.555
Withholding of retainage. The withholding of retainage by a contractor or
subcontractor on public improvement contracts shall be in accordance with ORS
701.420. [2003 c.794 §147; 2013 c.410 §1]

279C.560
Form of retainage; procedures for holding and payment. (1) Unless a
contracting agency that reserves an amount as retainage under ORS 279C.570 (7)
finds in writing that accepting a bond or instrument described in paragraph (a)
or (b) of this subsection poses an extraordinary risk that is not typically
associated with the bond or instrument, the contracting agency in lieu of
withholding moneys from payment shall accept from a contractor:

(a)
Bonds, securities or other instruments of a character described in subsection
(6) of this section that are deposited as provided in subsection (4) of this
section; or

(b)
A surety bond deposited as provided in subsection (7) of this section.

(a)
Hold the moneys in a fund and pay the moneys to the contractor in accordance
with ORS 279C.570; or

(b)
At the election of the contractor, pay the moneys to the contractor in
accordance with subsection (4) or (5) of this section and in a manner
authorized by the Director of the Oregon Department of Administrative Services.

(3)
If the contracting agency incurs additional costs as a result of the exercise
of an option described in subsection (1) or (5) of this section, the
contracting agency may recover the costs from the contractor by reducing the
final payment. As work on the contract progresses, the contracting agency
shall, upon demand, inform the contractor of all accrued costs.

(4)
The contractor may deposit bonds, securities or other instruments with the
contracting agency or in a bank or trust company for the contracting agency to
hold for the contracting agency’s benefit in lieu of moneys held as retainage.
If the contracting agency accepts bonds, securities or other instruments
deposited as provided in this subsection, the contracting agency shall reduce
the moneys held as retainage in an amount equal to the value of the bonds, securities
and other instruments and pay the amount of the reduction to the contractor in
accordance with ORS 279C.570. Interest or earnings on the bonds, securities or
other instruments shall accrue to the contractor.

(5)
If the contractor elects, the contracting agency shall deposit the retainage as
accumulated in an interest-bearing account in a bank, savings bank, trust
company or savings association for the benefit of the contracting agency. When
the contracting agency is a state contracting agency, the account must be
established through the State Treasurer. Earnings on the account accrue to the
contractor.

(6)
Bonds, securities and other instruments deposited or acquired in lieu of
retainage, as permitted by this section, must be of a character approved by the
Director of the Oregon Department of Administrative Services, including but not
limited to:

(a)
Bills, certificates, notes or bonds of the United States.

(b)
Other obligations of the United States or agencies of the United States.

(c)
Obligations of a corporation wholly owned by the federal government.

(d)
Indebtedness of the Federal National Mortgage Association.

(e)
General obligation bonds of the State of Oregon or a political subdivision of
the State of Oregon.

(f)
Irrevocable letters of credit issued by an insured institution, as defined in
ORS 706.008.

(7)
The contractor, with the approval of the contracting agency, may deposit a
surety bond for all or any portion of the amount of funds retained, or to be
retained, by the contracting agency in a form acceptable to the contracting
agency. The bond and any proceeds of the bond must be made subject to all
claims and liens and in the same manner and priority as set forth for retainage
under ORS 279C.550 to 279C.570 and 279C.600 to 279C.625. The contracting agency
shall reduce the moneys the contracting agency holds as retainage in an amount
equal to the value of the bond and pay the amount of the reduction to the
contractor in accordance with ORS 279C.570. Whenever a contracting agency accepts
a surety bond from a contractor in lieu of retainage, the contractor shall
accept like bonds from a subcontractor or supplier from which the contractor
has retainage. The contractor shall then reduce the moneys the contractor holds
as retainage in an amount equal to the value of the bond and pay the amount of
the reduction to the subcontractor or supplier. [2003 c.794 §148; 2009 c.568 §1]

279C.565
Limitation on retainage requirements. Unless otherwise specifically included
by statute, the provisions of ORS 279C.560 or 279C.625 apply only as between
the contracting agency or public body and the party with whom it contracts. [2003
c.794 §149]

279C.570
Prompt payment policy; progress payments; retainage; interest; exception;
settlement of compensation disputes. (1) It is the policy of the State of
Oregon that all payments due on a public improvement contract and owed by a
contracting agency shall be paid promptly. No contracting agency is exempt from
the provisions of this section.

(2)
Contracting agencies shall make progress payments on the contract monthly as
work progresses on a public improvement contract. Payments shall be based upon
estimates of work completed that are approved by the contracting agency. A
progress payment is not considered acceptance or approval of any work or waiver
of any defects therein. The contracting agency shall pay to the contractor
interest on the progress payment, not including retainage, due the contractor.
The interest shall commence 30 days after receipt of the invoice from the
contractor or 15 days after the payment is approved by the contracting agency,
whichever is the earlier date. The rate of interest charged to the contracting
agency on the amount due shall equal three times the discount rate on 90-day
commercial paper in effect at the Federal Reserve Bank in the Federal Reserve
district that includes Oregon on the date that is 30 days after receipt of the
invoice from the contractor or 15 days after the payment is approved by the
contracting agency, whichever is the earlier date, but the rate of interest may
not exceed 30 percent.

(3)
Interest shall be paid automatically when payments become overdue. The
contracting agency shall document, calculate and pay any interest due when
payment is made on the principal. Interest payments shall accompany payment of
net due on public improvement contracts. The contracting agency may not require
the contractor to petition, invoice, bill or wait additional days to receive
interest due.

(4)
When an invoice is filled out incorrectly, when there is any defect or
impropriety in any submitted invoice or when there is a good faith dispute, the
contracting agency shall so notify the contractor within 15 days stating the
reason or reasons the invoice is defective or improper or the reasons for the
dispute. A defective or improper invoice, if corrected by the contractor within
seven days of being notified by the contracting agency, may not cause a payment
to be made later than specified in this section unless interest is also paid.

(5)
If requested in writing by a first-tier subcontractor, the contractor, within
10 days after receiving the request, shall send to the first-tier subcontractor
a copy of that portion of any invoice, request for payment submitted to the
contracting agency or pay document provided by the contracting agency to the
contractor specifically related to any labor or materials supplied by the
first-tier subcontractor.

(6)
Payment of interest may be postponed when payment on the principal is delayed
because of disagreement between the contracting agency and the contractor.
Whenever a contractor brings formal administrative or judicial action to
collect interest due under this section, the prevailing party is entitled to
costs and reasonable attorney fees.

(7)
A contracting agency may reserve as retainage from any progress payment on a
public improvement contract an amount not to exceed five percent of the
payment. As work progresses, a contracting agency may reduce the amount of the
retainage and the contracting agency may eliminate retainage on any remaining
monthly contract payments after 50 percent of the work under the contract is
completed if, in the contracting agency’s opinion, such work is progressing
satisfactorily. Elimination or reduction of retainage shall be allowed only
upon written application by the contractor, and the application shall include
written approval of the contractor’s surety. However, when the contract work is
97.5 percent completed the contracting agency may, at the contracting agency’s
discretion and without application by the contractor, reduce the retained
amount to 100 percent of the value of the contract work remaining to be done.
Upon receipt of a written application by the contractor, the contracting agency
shall respond in writing within a reasonable time.

(8)
The retainage held by a contracting agency shall be included in and paid to the
contractor as part of the final payment of the contract price. The contracting
agency shall pay to the contractor interest at the rate of 1.5 percent per
month on the final payment due the contractor, interest to commence 30 days
after the work under the contract has been completed and accepted and to run
until the date when the final payment is tendered to the contractor. The
contractor shall notify the contracting agency in writing when the contractor
considers the work complete and the contracting agency shall, within 15 days
after receiving the written notice, either accept the work or notify the
contractor of work yet to be performed on the contract. If the contracting
agency does not, within the time allowed, notify the contractor of work yet to
be performed to fulfill contractual obligations, the interest provided by this
subsection shall commence to run 30 days after the end of the 15-day period.

(9)(a)
The contracting agency shall pay, upon settlement or judgment in favor of the
contractor regarding any dispute as to the compensation due a contractor for
work performed under the terms of a public improvement contract, the amount due
plus interest at the rate of two times the discount rate, but not to exceed 30
percent, on 90-day commercial paper in effect at the Federal Reserve Bank in
the Federal Reserve district that includes Oregon on the date of the settlement
or judgment, and accruing from the later of:

(A)
The due date of any progress payment received under the contract for the period
in which such work was performed; or

(B)
Thirty days after the date on which the claim for the payment under dispute was
presented to the contracting agency by the contractor in writing or in
accordance with applicable provisions of the contract.

(b)
Interest shall be added to and not made a part of the settlement or judgment. [2003
c.794 §150; 2005 c.103 §33]

(Subcontractors)

279C.580
Contractor’s relations with subcontractors. (1) A contractor may not request
payment from the contracting agency of any amount withheld or retained in
accordance with subsection (5) of this section until the contractor has
determined and certified to the contracting agency that the subcontractor has
determined and certified to the contracting agency that the subcontractor is
entitled to the payment.

(2)
A dispute between a contractor and first-tier subcontractor relating to the
amount or entitlement of a first-tier subcontractor to a payment or a late
payment interest penalty under a clause included in the subcontract under
subsection (3) or (4) of this section does not constitute a dispute to which
the contracting agency is a party. The contracting agency may not be included
as a party in any administrative or judicial proceeding involving such a
dispute.

(3)
Each public improvement contract awarded by a contracting agency must include a
clause that requires the contractor to include in each subcontract for property
or services the contractor enters into with a first-tier subcontractor,
including a material supplier, for the purpose of performing a construction
contract:

(a)
A payment clause that obligates the contractor to pay the first-tier
subcontractor for satisfactory performance under the subcontract within 10 days
out of amounts the contracting agency pays to the contractor under the public
improvement contract.

(b)
A clause that requires the contractor to provide a first-tier subcontractor
with a standard form that the first-tier subcontractor may use as an
application for payment or as another method by which the subcontractor may
claim a payment due from the contractor.

(c)
A clause that requires the contractor, except as otherwise provided in this
paragraph, to use the same form and regular administrative procedures for
processing payments during the entire term of the subcontract. A contractor may
change the form or the regular administrative procedures the contractor uses
for processing payments if the contractor:

(A)
Notifies the subcontractor in writing at least 45 days before the date on which
the contractor makes the change; and

(B)
Includes with the written notice a copy of the new or changed form or a
description of the new or changed procedure.

(d)
An interest penalty clause that obligates the contractor, if the contractor
does not pay the first-tier subcontractor within 30 days after receiving
payment from the contracting agency, to pay the first-tier subcontractor an
interest penalty on amounts due in each payment the contractor does not make in
accordance with the payment clause included in the subcontract under paragraph
(a) of this subsection. A contractor or first-tier subcontractor is not
obligated to pay an interest penalty if the only reason that the contractor or
first-tier subcontractor did not make payment when payment was due is that the
contractor or first-tier subcontractor did not receive payment from the
contracting agency or contractor when payment was due. The interest penalty:

(A)
Applies to the period that begins on the day after the required payment date
and that ends on the date on which the amount due is paid; and

(B)
Is computed at the rate specified in ORS 279C.515 (2).

(4)
A public improvement contract that the contracting agency awards shall obligate
the contractor, in each of the contractor’s subcontracts, to require the
first-tier subcontractor to include a payment clause and an interest penalty
clause that conforms to the standards of subsection (3) of this section in each
of the first-tier subcontractor’s subcontracts and to require each of the
first-tier subcontractor’s subcontractors to include such clauses in the
first-tier subcontractors’ subcontracts with each lower-tier subcontractor or
supplier.

(5)(a)
The clauses required by subsections (3) and (4) of this section do not impair
the right of a contractor or a subcontractor at any tier to negotiate, and to
include in the subcontract, provisions that:

(A)
Permit the contractor or a subcontractor to retain, in the event of a good
faith dispute, an amount not to exceed 150 percent of the amount in dispute
from the amount due a subcontractor under the subcontract without incurring any
obligation to pay a late payment interest penalty, in accordance with terms and
conditions the parties to the subcontract agree upon, giving such recognition
as the parties consider appropriate to the ability of a subcontractor to
furnish a performance bond and a payment bond;

(B)
Permit the contractor or subcontractor to make a determination that part or all
of the subcontractor’s request for payment may be withheld in accordance with
the subcontract; and

(C)
Permit such withholdings without incurring any obligation to pay a late payment
interest penalty if:

(i)
A notice that conforms to the standards of subsection (8) of this section has
been previously furnished to the subcontractor; and

(ii)
A copy of any notice a contractor issues under sub-subparagraph (i) of this
subparagraph has been furnished to the contracting agency.

(b)
As used in this subsection, “good faith dispute” means a documented dispute
concerning:

(A)
Unsatisfactory job progress.

(B)
Defective work not remedied.

(C)
Third-party claims filed or reasonable evidence that claims will be filed.

(D)
Failure to make timely payments for labor, equipment and materials.

(E)
Damage to the contractor or subcontractor.

(F)
Reasonable evidence that the subcontract cannot be completed for the unpaid
balance of the subcontract sum.

(6)
If, after applying to a contracting agency for payment under a public
improvement contract but before paying a subcontractor for the subcontractor’s
performance covered by the application, a contractor discovers that all or a portion
of the payment otherwise due the subcontractor is subject to withholding from
the subcontractor in accordance with the subcontract, the contractor shall:

(a)
Furnish to the subcontractor a notice conforming to the standards of subsection
(8) of this section as soon as practicable after ascertaining the cause for the
withholding, but before the due date for payment to the subcontractor;

(b)
Furnish to the contracting agency, as soon as practicable, a copy of the notice
furnished to the subcontractor under paragraph (a) of this subsection;

(c)
Reduce the progress payment to the subcontractor by an amount not to exceed the
amount specified in the notice of withholding furnished under paragraph (a) of
this subsection;

(d)
Pay the subcontractor as soon as practicable after the correction of the
identified subcontract performance deficiency;

(e)
Make such payment within:

(A)
Seven days after correction of the identified subcontract performance
deficiency unless the funds for the payment must be recovered from the
contracting agency because of a reduction under paragraph (f)(A) of this
subsection; or

(B)
Seven days after the contractor recovers the funds from the contracting agency;

(f)
Notify the contracting agency upon:

(A)
Reduction of the amount of any subsequent certified application for payment; or

(B)
Payment to the subcontractor of any withheld amounts of a progress payment,
specifying:

(i)
The amounts of the progress payments withheld under paragraph (a) of this
subsection; and

(ii)
The dates on which the withholding began and ended; and

(g)
Be obligated to pay to the contracting agency an amount equal to interest on
the withheld payments computed in the manner provided in ORS 279C.570 from the
11th day after receiving the withheld amounts from the contracting agency
until:

(A)
The day the identified subcontractor performance deficiency is corrected; or

(B)
The date that any subsequent payment is reduced under paragraph (f)(A) of this
subsection.

(7)(a)
If a contractor, after paying a first-tier subcontractor, receives from a
supplier or subcontractor of the first-tier subcontractor a written notice
asserting a deficiency in the first-tier subcontractor’s performance under the
public improvement contract for which the contractor may be ultimately liable
and the contractor determines that all or a portion of future payments
otherwise due the first-tier subcontractor is subject to withholding in
accordance with the subcontract, the contractor may, without incurring an
obligation to pay a late payment interest penalty under subsection (6)(e) of
this section:

(A)
Furnish to the first-tier subcontractor a notice that conforms to the standards
of subsection (8) of this section as soon as practicable after making the
determination; and

(B)
Withhold from the first-tier subcontractor’s next available progress payment or
payments an amount not to exceed the amount specified in the notice of
withholding furnished under subparagraph (A) of this paragraph.

(b)
As soon as practicable, but not later than 10 days after receiving satisfactory
written notice that the identified subcontract performance deficiency has been
corrected, the contractor shall pay the amount withheld under paragraph (a)(B)
of this subsection to the first-tier subcontractor, or shall incur an
obligation to pay a late payment interest penalty to the first-tier
subcontractor computed at the rate specified in ORS 279C.570.

(8)
A written notice of any withholding must be issued to a subcontractor, with a
copy to the contracting agency, that specifies:

(a)
The amount to be withheld;

(b)
The specified causes for the withholding under the terms of the subcontract;
and

(c)
The remedial actions the subcontractor must take in order to receive payment of
the amounts withheld.

(9)
Except as provided in subsection (2) of this section, this section does not
limit or impair any contractual, administrative or judicial remedies otherwise
available to a contractor or a subcontractor in the event of a dispute
involving a contractor’s late payment or nonpayment or a subcontractor’s
deficient performance or nonperformance.

(10)
A contractor’s obligation to pay a late payment interest penalty to a
subcontractor under the clause included in a subcontract under subsection (3)
or (4) of this section is not an obligation of the contracting agency. A
contract modification may not be made for the purpose of providing
reimbursement of a late payment interest penalty. A cost reimbursement claim
may not include any amount for reimbursement of a late payment interest
penalty. [2003 c.794 §151; 2005 c.103 §34; 2012 c.4 §2]

279C.585
Authority to substitute undisclosed first-tier subcontractor; circumstances;
rules.
A contractor whose bid is accepted may substitute a first-tier subcontractor
that was not disclosed under ORS 279C.370 by submitting the name of the new
subcontractor and the reason for the substitution in writing to the contracting
agency. A contractor may substitute a first-tier subcontractor under this
section in the following circumstances:

(1)
When the subcontractor disclosed under ORS 279C.370 fails or refuses to execute
a written contract after having had a reasonable opportunity to do so after the
written contract, which must be reasonably based upon the general terms,
conditions, plans and specifications for the public improvement project or the
terms of the subcontractor’s written bid, is presented to the subcontractor by
the contractor.

(2)
When the disclosed subcontractor becomes bankrupt or insolvent.

(3)
When the disclosed subcontractor fails or refuses to perform the subcontract.

(4)
When the disclosed subcontractor fails or refuses to meet the bond requirements
of the contractor that had been identified prior to the bid submittal.

(5)
When the contractor demonstrates to the contracting agency that the
subcontractor was disclosed as the result of an inadvertent clerical error.

(6)
When the disclosed subcontractor does not hold a license from, or has a license
that is not properly endorsed by, the Construction Contractors Board and is required
to be licensed by the board.

(7)
When the contractor determines that the work performed by the disclosed
subcontractor is substantially unsatisfactory and not in substantial accordance
with the plans and specifications or that the subcontractor is substantially
delaying or disrupting the progress of the work.

(8)
When the disclosed subcontractor is ineligible to work on a public improvement
contract under applicable statutory provisions.

(9)
When the substitution is for good cause. The Construction Contractors Board
shall define “good cause” by rule. “Good cause” includes but is not limited to
the financial instability of a subcontractor. The definition of “good cause”
must reflect the least-cost policy for public improvements established in ORS 279C.305.

(10)
When the substitution is reasonably based on the contract alternates chosen by
the contracting agency. [2003 c.794 §152; 2007 c.836 §45]

279C.590
Complaint process for substitutions of subcontractors; civil penalties. (1)(a) A
subcontractor disclosed under ORS 279C.370 may file a complaint based on the
subcontractor disclosure requirements under ORS 279C.370 with the Construction
Contractors Board about a contractor if the contractor has substituted another
subcontractor for the complaining subcontractor.

(b)
If more than one subcontractor files a complaint with the board under paragraph
(a) of this subsection relating to a single subcontractor disclosure, the board
shall consolidate the complaints into one proceeding. If the board imposes a
civil penalty under this section against a contractor, the amount collected by
the board shall be divided evenly among all of the complaining subcontractors.

(c)
Each subcontractor filing a complaint under paragraph (a) of this subsection
shall post a deposit of $500 with the board upon filing the complaint.

(d)
If the board determines that a contractor’s substitution was not in compliance
with ORS 279C.585, the board shall return the full amount of the deposit posted
under paragraph (c) of this subsection to the complaining subcontractor.

(e)
If the board determines that a contractor has not substituted a subcontractor
or that the contractor’s substitution was in compliance with ORS 279C.585, the
board shall award the contractor $250 of the deposit and shall retain the other
$250, which may be expended by the board.

(2)
Upon receipt of a complaint under subsection (1) of this section, the board
shall investigate the complaint. If the board determines that a contractor has
substituted a subcontractor in a manner not in compliance with ORS 279C.585,
the board may impose a civil penalty against the contractor under subsections
(3) to (5) of this section. Civil penalties under this section shall be imposed
in the manner provided under ORS 183.745.

(3)
If the board imposes a civil penalty under subsection (2) of this section and
it is the first time the board has imposed a civil penalty under subsection (2)
of this section against the contractor during a three-year period, the board
shall:

(a)
Impose a civil penalty on the contractor of up to 10 percent of the amount of
the subcontract bid submitted by the complaining subcontractor to the
contractor or $15,000, whichever is less. Amounts collected by the board under
this paragraph shall be awarded to the complaining subcontractor or
subcontractors; and

(b)
Impose a civil penalty on the contractor of up to $1,000. Amounts collected by
the board under this paragraph shall be retained by the board and may be
expended by the board.

(4)
If the board imposes a civil penalty under subsection (2) of this section and
it is the second time the board has imposed a civil penalty under subsection
(2) of this section against the contractor during a three-year period, the
board may:

(a)
Impose a civil penalty on the contractor of up to 10 percent of the amount of
the subcontract bid submitted by the complaining subcontractor to the
contractor or $15,000, whichever is less. Amounts collected by the board under
this paragraph shall be awarded to the complaining subcontractor or
subcontractors; and

(b)
Impose a civil penalty on the contractor of up to $1,000 and shall place the
contractor on the list established under ORS 701.227 for up to six months.
Amounts collected by the board under this paragraph shall be retained by the
board and may be expended by the board.

(5)
If the board imposes a civil penalty under subsection (2) of this section and
the board has imposed a civil penalty under subsection (2) of this section
against the contractor three or more times during a three-year period, the
board may:

(a)
Impose a civil penalty on the contractor of up to 10 percent of the amount of
the subcontract bid submitted by the complaining subcontractor to the
contractor or $15,000, whichever is less. Amounts collected by the board under
this paragraph shall be awarded to the complaining subcontractor or
subcontractors; and

(b)
Impose a civil penalty on the contractor of up to $1,000 and shall place the
contractor on the list established under ORS 701.227 for up to one year.
Amounts collected by the board under this paragraph shall be retained by the
board and may be expended by the board.

(6)
Within 10 working days after receiving a complaint under subsection (1) of this
section, the board shall notify, in writing, any contracting agency that is a
party to the contract for which the complaint has been filed that the complaint
has been filed. [2003 c.794 §153]

(Action
on Payment Bonds and Public Works Bonds)

279C.600
Right of action on payment bond or public works bond of contractor or subcontractor;
notice of claim.
(1) A person claiming to have supplied labor or materials for the performance
of the work provided for in a public contract, including any person having a
direct contractual relationship with the contractor furnishing the payment bond
or a direct contractual relationship with any subcontractor, or an assignee of
such person, or a person claiming moneys due the State Accident Insurance Fund
Corporation, the Unemployment Compensation Trust Fund or the Department of
Revenue in connection with the performance of the contract, has a right of
action on the contractor’s payment bond as provided for in ORS 279C.380 and
279C.400 only if:

(a)
The person or the assignee of the person has not been paid in full; and

(b)
The person gives written notice of claim, as prescribed in ORS 279C.605, to the
contractor and the contracting agency.

(2)
When, upon investigation, the Commissioner of the Bureau of Labor and
Industries has received information indicating that one or more workers
providing labor on a public works have not been paid in full at the prevailing
rate of wage or overtime wages, the commissioner has a right of action first on
the contractor’s public works bond required under ORS 279C.836 and then, for
any amount of a claim not satisfied by the public works bond, on the contractor’s
payment bond, as provided in ORS 279C.380 and 279C.400. When an investigation
indicates that a subcontractor’s workers have not been paid in full at the
prevailing rate of wage or overtime wages, the commissioner has a right of
action first on the subcontractor’s public works bond and then, for any amount
of a claim not satisfied by the subcontractor’s public works bond, on the
contractor’s payment bond. The commissioner’s right of action exists without
necessity of an assignment and extends to workers on the project who are not
identified when the written notice of claim is given, but for whom the
commissioner has received information indicating that the workers have provided
labor on the public works and have not been paid in full. The commissioner
shall give written notice of the claim, as prescribed in ORS 279C.605, to the
contracting agency, the Construction Contractors Board, the contractor and, if
applicable, the subcontractor. The commissioner may not make a claim for the
same unpaid wages against more than one bond under this section. [2003 c.794 §154;
2005 c.360 §3]

279C.605
Notice of claim.
(1) The notice of claim required by ORS 279C.600 must be sent by registered or
certified mail or hand delivered no later than 180 days after the day the
person last provided labor or furnished materials or 180 days after the worker
listed in the notice of claim by the Commissioner of the Bureau of Labor and
Industries last provided labor. The notice may be sent or delivered to the
contractor or subcontractor at any place the contractor or subcontractor
maintains an office or conducts business or at the residence of the contractor
or subcontractor.

(2)
Notwithstanding subsection (1) of this section, if the claim is for a required
contribution to a fund of an employee benefit plan, the notice required by ORS
279C.600 must be sent or delivered within 200 days after the employee last
provided labor or materials.

To
(here insert the name of the contractor or subcontractor and the name of the
public body):

Notice
hereby is given that the undersigned (here insert the name of the claimant) has
a claim for (here insert a brief description of the labor or materials
performed or furnished and the person by whom performed or furnished; if the
claim is for other than labor or materials, insert a brief description of the
claim) in the sum of (here insert the amount) dollars against the (here insert
public works bond or payment bond, as applicable) taken from (here insert the
name of the principal and, if known, the surety or sureties upon the public
works bond or payment bond) for the work of (here insert a brief description of
the work concerning which the public works bond or payment bond was taken).
Such material or labor was supplied to (here insert the name of the contractor
or subcontractor).

(4)
When notice of claim is given by the commissioner and if the claim includes a
worker who is then unidentified, the commissioner shall include in the notice a
statement that the claim includes an unidentified worker for whom the
commissioner has received information indicating that the worker has not been
paid in full at the prevailing rate of wage required by ORS 279C.840 or
overtime wages required by ORS 279C.540.

279C.610
Action on contractor’s public works bond or payment bond; time limitation. (1) The
Commissioner of the Bureau of Labor and Industries or a person who has a right
of action on the public works bond or the payment bond under ORS 279C.600 and,
where required, who has filed and served the notice or notices of claim, as
required under ORS 279C.600 and 279C.605, or that person’s assignee, may
institute an action on the contractor’s public works bond or payment bond in a
circuit court of this state or the federal district court of the district.

(2)
The action shall be on the relation of the commissioner, the claimant, or that
person’s assignee, as the case may be, and shall be in the name of the
contracting agency that let the contract or, when applicable, the public agency
or agencies for whose benefit the contract was let. It may be prosecuted to
final judgment and execution for the use and benefit of the commissioner or the
claimant, or that person’s assignee, as the fact may appear.

(3)
The action shall be instituted no later than two years after the person last
provided labor or materials or two years after the worker listed in the
commissioner’s notice of claim last provided labor. [2003 c.794 §156; 2005
c.360 §5]

279C.615
Preference for labor and material liens. All labor and material liens have
preference and are superior to all other liens and claims of any kind or nature
created by ORS 279C.500 to 279C.530 and 279C.600 to 279C.625. [2003 c.794 §157]

279C.620
Rights of person providing medical care to employees of contractor. A person
providing medical, surgical or hospital care services or other needed care and
attention, incident to sickness or injury, to the employees of a contractor or
subcontractor on a public contract is deemed to have performed labor on the
public contract for the purposes of ORS 279C.600 to 279C.625. [2003 c.794 §158]

279C.625
Joint liability when payment bond not executed. If the public
improvement contract is one for which a payment bond as provided for in ORS
279C.380 and 279C.400 is required and the contractor fails to pay for labor or
materials or to pay claims due the Industrial Accident Fund, the Unemployment
Compensation Trust Fund or the Department of Revenue and the officers of the
public body that authorized the contract fail or neglect to require the person
entering into the contract to execute the payment bond:

(1)
The State of Oregon and the officers authorizing the contract shall be jointly
liable for the labor and materials used in the performance of any work under
the contract, and for claims due the Industrial Accident Fund, the Unemployment
Compensation Trust Fund and the Department of Revenue, if the contract was
entered into with the State of Oregon.

(2)
The public body and the officers authorizing the contract shall be jointly liable
for the labor and materials used in the performance of any work under the
contract and for claims due the Industrial Accident Fund, the Unemployment
Compensation Trust Fund and the Department of Revenue, if the contract was
entered into on behalf of a public body other than the state. [2003 c.794 §159;
2005 c.103 §35]

(Termination
or Suspension of Contract for Public Interest Reasons)

279C.650
“Labor dispute” defined. As used in ORS 279C.650 to 279C.670, “labor dispute”
has the meaning given that term in ORS 662.010. [2003 c.794 §160]

279C.655
Extension and compensation when work suspended. If a public
contract is not terminated but work under the contract is suspended by an order
of a contracting agency for any reason considered to be in the public interest
other than a labor dispute or any third-party judicial proceeding relating to
the work other than a suit or action filed in regards to a labor dispute, the
contractor is entitled to a reasonable extension of the contract time and
reasonable compensation for all costs resulting from the suspension plus a
reasonable allowance for overhead with respect to such costs. [2003 c.794 §161]

279C.660
Compensation when contract terminated due to public interest. When a public
contract is terminated by mutual agreement, provision shall be made for the
payment of compensation to the contractor. In addition to a reasonable amount
of compensation for preparatory work and for all costs and expenses arising out
of termination, the amount to be paid to the contractor:

(1)
Shall be determined on the basis of the contract price in the case of any fully
completed separate item or portion of the work for which there is a separate or
unit contract price; and

(2)
May, with respect to any other work, be a percent of the contract price equal
to the percentage of the work completed. [2003 c.794 §162]

279C.665
Contractual provisions for compensation when contract terminated due to public
interest.
A contracting agency may provide in a public improvement contract detailed
provisions under which the contractor shall be entitled, as a matter of right,
to compensation upon termination of the contract on account of any reason
considered to be in the public interest. [2003 c.794 §163]

279C.670
Application of ORS 279C.650 to 279C.670. ORS 279C.650 to 279C.670 do not apply
to suspension of the work or termination of the contract that occurs as a
result of the contractor’s violation of federal, state or local statutes,
ordinances, rules or regulations in existence at the time the contract was
executed or as a result of violations of the terms of the contract. [2003 c.794
§164]

PREVAILING
WAGE RATE

279C.800
Definitions for ORS 279C.800 to 279C.870. As used in ORS 279C.800 to
279C.870:

(1)
“Fringe benefits” means the amount of:

(a)
The rate of contribution a contractor or subcontractor makes irrevocably to a
trustee or to a third person under a plan, fund or program; and

(b)
The rate of costs to the contractor or subcontractor that may be reasonably
anticipated in providing the following items, except for items that federal,
state or local law requires the contractor or subcontractor to provide:

(A)
Benefits to workers pursuant to an enforceable written commitment to the
workers to carry out a financially responsible plan or program for:

(i)
Medical or hospital care;

(ii)
Pensions on retirement or death; or

(iii)
Compensation for injuries or illness that result from occupational activity;

(B)
Insurance to provide the benefits described in subparagraph (A) of this
paragraph;

(C)
Unemployment benefits;

(D)
Life insurance;

(E)
Disability and sickness insurance or accident insurance;

(F)
Vacation and holiday pay;

(G)
Costs of apprenticeship or other similar programs; or

(H)
Other bona fide fringe benefits.

(2)
“Housing” has the meaning given that term in ORS 456.055.

(3)
“Locality” means the following district in which the public works, or the major
portion thereof, is to be performed:

(a)
District 1, composed of Clatsop, Columbia and Tillamook Counties;

(b)
District 2, composed of Clackamas, Multnomah and Washington Counties;

(4)
“Prevailing rate of wage” means the rate of hourly wage, including all fringe
benefits, that the Commissioner of the Bureau of Labor and Industries
determines is paid in the locality to the majority of workers employed on
projects of a similar character in the same trade or occupation.

(5)
“Public agency” means the State of Oregon or a political subdivision of the
State of Oregon, or a county, city, district, authority, public corporation or
public entity organized and existing under law or charter or an instrumentality
of the county, city, district, authority, public corporation or public entity.

(6)(a)
“Public works” includes, but is not limited to:

(A)
Roads, highways, buildings, structures and improvements of all types, the
construction, reconstruction, major renovation or painting of which is carried
on or contracted for by any public agency to serve the public interest;

(B)
A project that uses funds of a private entity and $750,000 or more of funds of
a public agency for constructing, reconstructing, painting or performing a
major renovation on a privately owned road, highway, building, structure or
improvement of any type;

(C)
A project that uses funds of a private entity for constructing a privately
owned road, highway, building, structure or improvement of any type in which a
public agency will use or occupy 25 percent or more of the square footage of
the completed project;

(D)
Notwithstanding the provisions of ORS 279C.810 (2)(a), (b) and (c), a device,
structure or mechanism, or a combination of devices, structures or mechanisms,
that:

(i)
Uses solar radiation as a source for generating heat, cooling or electrical
energy; and

(ii)
Is constructed or installed, with or without using funds of a public agency, on
land, premises, structures or buildings that a public body, as defined in ORS
174.109, owns; or

(E)
Notwithstanding paragraph (b)(A) of this subsection and ORS 279C.810 (2)(b) and
(c), construction, reconstruction, painting or major renovation of a road,
highway, building, structure or improvement of any type that occurs, with or
without using funds of a public agency, on real property that the Oregon
University System or an institution in the Oregon University System owns.

(b)
“Public works” does not include:

(A)
The reconstruction or renovation of privately owned property that a public
agency leases; or

(B)
The renovation of publicly owned real property that is more than 75 years old
by a private nonprofit entity if:

(i)
The real property is leased to the private nonprofit entity for more than 25
years;

(ii)
Funds of a public agency used in the renovation do not exceed 15 percent of the
total cost of the renovation; and

(iii)
Contracts for the renovation were advertised or, if not advertised, were
entered into before July 1, 2003, but the renovation has not been completed on
or before July 13, 2007. [2003 c.794 §165; 2007 c.764 §34; 2010 c.45 §1; 2013
c.203 §1]

279C.805
Policy.
The Legislative Assembly declares that the purposes of the prevailing rate of
wage law are:

(1)
To ensure that contractors compete on the ability to perform work competently
and efficiently while maintaining community-established compensation standards.

(2)
To recognize that local participation in publicly financed construction and
family wage income and benefits are essential to the protection of community
standards.

(3)
To encourage training and education of workers to industry skills standards.

(4)
To encourage employers to use funds allocated for employee fringe benefits for
the actual purchase of those benefits. [2003 c.794 §166]

279C.807
Workforce diversity for public works projects. (1) The Bureau
of Labor and Industries shall develop and adopt a plan to increase diversity statewide
among workers employed on projects subject to ORS 279C.800 to 279C.870. The
bureau shall develop the plan after conducting a statewide public process to
solicit proposals to increase diversity and shall adopt the plan after
considering proposals submitted to the bureau.

(2)
The bureau shall report each year to the Legislative Assembly or to the
appropriate legislative interim committee concerning progress that results from
the plan adopted under this section and may submit recommendations for legislation
or other measures that will improve diversity among workers employed on
projects subject to ORS 279C.800 to 279C.870. The bureau shall submit the first
report no later than January 1, 2009. [2007 c.844 §9]

Note: 279C.807 was
enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 279C or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.

279C.808
Rules.
In accordance with applicable provisions of ORS chapter 183, the Commissioner
of the Bureau of Labor and Industries shall adopt rules necessary to administer
ORS 279C.800 to 279C.870. [2007 c.764 §45]

279C.810
Exemptions; rules.
(1) As used in this section:

(a)
“Funds of a public agency” does not include:

(A)
Funds provided in the form of a government grant to a nonprofit organization,
unless the government grant is issued for the purpose of construction,
reconstruction, major renovation or painting;

(B)
Building and development permit fees paid or waived by the public agency;

(C)
Tax credits or tax abatements;

(D)
Land that a public agency sells to a private entity at fair market value;

(E)
The difference between:

(i)
The value of land that a public agency sells to a private entity as determined
at the time of the sale after taking into account any plan, requirement,
covenant, condition, restriction or other limitation, exclusive of zoning or
land use regulations, that the public agency imposes on the development or use
of the land; and

(ii)
The fair market value of the land if the land is not subject to the limitations
described in sub-subparagraph (i) of this subparagraph;

(F)
Staff resources of the public agency used to manage a project or to provide a
principal source of supervision, coordination or oversight of a project;

(G)
Staff resources of the public agency used to design or inspect one or more
components of a project;

(H)
Moneys derived from the sale of bonds that are loaned by a state agency to a
private entity, unless the moneys will be used for a public improvement;

(I)
Value added to land as a consequence of a public agency’s site preparation,
demolition of real property or remediation or removal of environmental
contamination, except for value added in excess of the expenses the public
agency incurred in the site preparation, demolition or remediation or removal
when the land is sold for use in a project otherwise subject to ORS 279C.800 to
279C.870; or

(J)
Bonds, or loans from the proceeds of bonds, issued in accordance with ORS
chapter 289 or ORS 441.525 to 441.595, unless the bonds or loans will be used
for a public improvement.

(b)
“Nonprofit organization” means an organization or group of organizations
described in section 501(c)(3) of the Internal Revenue Code that is exempt from
income tax under section 501(a) of the Internal Revenue Code.

(2)
ORS 279C.800 to 279C.870 do not apply to:

(a)
Projects for which the contract price does not exceed $50,000. In determining
the price of a project, a public agency:

(A)
May not include the value of donated materials or work performed on the project
by individuals volunteering to the public agency without pay; and

(B)
Shall include the value of work performed by every person paid by a contractor
or subcontractor in any manner for the person’s work on the project.

(b)
Projects for which no funds of a public agency are directly or indirectly used.
In accordance with ORS chapter 183, the Commissioner of the Bureau of Labor and
Industries shall adopt rules to carry out the provisions of this paragraph.

(c)
Projects:

(A)
That are privately owned;

(B)
That use funds of a private entity;

(C)
In which less than 25 percent of the square footage of a completed project will
be occupied or used by a public agency; and

(D)
For which less than $750,000 of funds of a public agency are used.

(d)
Projects for residential construction that are privately owned and that
predominantly provide affordable housing. As used in this paragraph:

(A)
“Affordable housing” means housing that serves occupants whose incomes are no
greater than 60 percent of the area median income or, if the occupants are
owners, whose incomes are no greater than 80 percent of the area median income.

(B)
“Predominantly” means 60 percent or more.

(C)
“Privately owned” includes:

(i)
Affordable housing provided on real property owned by a public agency if the
real property and related structures are leased to a private entity for 50 or
more years; and

(ii)
Affordable housing owned by a partnership, nonprofit corporation or limited
liability company in which a housing authority, as defined in ORS 456.005, is a
general partner, director or managing member and the housing authority is not a
majority owner in the partnership, nonprofit corporation or limited liability
company.

(D)
“Residential construction” includes the construction, reconstruction, major
renovation or painting of single-family houses or apartment buildings not more
than four stories in height and all incidental items, such as site work,
parking areas, utilities, streets and sidewalks, pursuant to the United States
Department of Labor’s “All Agency Memorandum No. 130: Application of the
Standard of Comparison “Projects of a Character Similar” Under Davis-Bacon and Related
Acts,” dated March 17, 1978. However, the commissioner may consider different
definitions of residential construction in determining whether a project is a
residential construction project for purposes of this paragraph, including
definitions that:

(i)
Exist in local ordinances or codes; or

(ii)
Differ, in the prevailing practice of a particular trade or occupation, from
the United States Department of Labor’s description of residential
construction. [2003 c.794 §172; 2005 c.153 §1; 2005 c.360 §8; 2007 c.764 §35]

279C.815
Determination of prevailing wage; sources of information; comparison of state
and federal prevailing wage; other powers of commissioner. (1) As used in
this section, “person” means an employer, a labor organization or an official
representative of an employee or employer association.

(2)(a)
The Commissioner of the Bureau of Labor and Industries at least once each year
shall determine the prevailing rate of wage for workers in each trade or
occupation in each locality described in ORS 279C.800 by means of an
independent wage survey and shall make this information available at least
twice each year. The commissioner may amend the rate at any time.

(b)
If the data derived only from the survey described in paragraph (a) of this subsection
appear to the commissioner to be insufficient to determine the prevailing rate
of wage, the commissioner shall consider additional information such as
collective bargaining agreements, other independent wage surveys and the
prevailing rates of wage determined by appropriate federal agencies or agencies
of adjoining states. If there is not a majority in the same trade or occupation
paid at the same rate, the average rate of hourly wage, including all fringe
benefits, paid in the locality to workers in the same trade or occupation is
the prevailing rate. If the wage a contractor or subcontractor pays to workers
on a public works is based on a period of time other than an hour, the hourly
wage must be mathematically determined by the number of hours worked in that
period of time.

(3)
A person shall make reports and returns to the Bureau of Labor and Industries
that the commissioner requires to determine the prevailing rates of wage, using
forms the bureau provides and within the time the commissioner prescribes. The
person or an authorized representative of the person shall certify to the
accuracy of the reports and returns.

(4)
Notwithstanding ORS 192.410 to 192.505, reports and returns or other
information provided to the commissioner under this section are confidential
and not available for inspection by the public.

(5)
The commissioner may enter into a contract with a public or private party to
obtain data and information the commissioner needs to determine the prevailing
rate of wage. The contract may provide for the manner and extent of the market
review of affected trades and occupations and for other requirements regarding
timelines of reports, accuracy of data and information and supervision and
review as the commissioner prescribes. [2003 c.794 §173; 2005 c.360 §9; 2007
c.764 §36; 2007 c.844 §3; 2011 c.265 §1]

279C.817
Determination of applicability of prevailing wage rate; time limitation;
hearing; rules.
(1) The Commissioner of the Bureau of Labor and Industries shall, upon the request
of a public agency or other interested person, make a determination about
whether a project or proposed project is or would be a public works on which
payment of the prevailing rate of wage is or would be required under ORS
279C.840.

(2)
The requester shall provide the commissioner with information necessary to
enable the commissioner to make the determination.

(3)
The commissioner shall make the determination within 60 days after receiving
the request or 60 days after the requester has provided the commissioner with
the information necessary to enable the commissioner to make the determination,
whichever is later. The commissioner may take additional time to make the
determination if the commissioner and the requester mutually agree that the
commissioner may do so.

(4)
The commissioner shall afford the requester or a person adversely affected or
aggrieved by the commissioner’s determination a hearing in accordance with ORS
183.413 to 183.470. An order the commissioner issues under ORS 183.413 to 183.470
is subject to judicial review as provided in ORS 183.482.

(5)
The commissioner shall adopt rules establishing the process for requesting and
making the determinations described in this section. [2007 c.764 §43]

279C.820
Advisory committee to assist commissioner. (1) The Commissioner of the
Bureau of Labor and Industries shall appoint an advisory committee to assist
the commissioner in the administration of ORS 279C.800 to 279C.870.

(2)
The advisory committee must include equal representation of members from
management and labor in the building and construction industry who perform work
on public works contracts and such other interested parties as the commissioner
shall appoint. [2003 c.794 §179]

279C.825
Fees; rules.
(1)(a) The Commissioner of the Bureau of Labor and Industries, by order, shall
establish a fee to be paid by the public agency that awards a public works
contract subject to ORS 279C.800 to 279C.870. The commissioner shall use the
fee to pay the costs of:

(A)
Surveys to determine the prevailing rates of wage;

(B)
Administering and providing investigations under and enforcement of ORS
279C.800 to 279C.870; and

(C)
Providing educational programs on public contracting law under the Public
Contracting Code.

(b)
The commissioner shall establish the fee at 0.1 percent of the contract price.
However, in no event may a fee be charged and collected that is less than $250
or more than $7,500.

(2)
The commissioner shall pay moneys received under this section into the State
Treasury. The moneys shall be credited to the Prevailing Wage Education and
Enforcement Account created by ORS 651.185.

(3)
The public agency shall pay the fee at the time the public agency notifies the
commissioner under ORS 279C.835 a contract subject to the provisions of ORS
279C.800 to 279C.870 has been awarded. [2003 c.794 §178; 2007 c.844 §7; 2009
c.161 §1; 2009 c.788 §1]

279C.827
Division of public works project; applicability of prevailing wage rate to
divided projects.
(1)(a) A public agency may not divide a public works project into more than one
contract for the purpose of avoiding compliance with ORS 279C.800 to 279C.870.

(b)
When the Commissioner of the Bureau of Labor and Industries determines that a
public agency has divided a public works project into more than one contract
for the purpose of avoiding compliance with ORS 279C.800 to 279C.870, the
commissioner shall issue an order compelling compliance.

(c)
In making determinations under this subsection, the commissioner shall
consider:

(A)
The physical separation of the project structures;

(B)
The timing of the work on project phases or structures;

(C)
The continuity of project contractors and subcontractors working on project
parts or phases;

(D)
The manner in which the public agency and the contractors administer and
implement the project;

(E)
Whether a single public works project includes several types of improvements or
structures; and

(F)
Whether the combined improvements or structures have an overall purpose or
function.

(2)
If a project is a public works of the type described in ORS 279C.800 (6)(a)(B)
or (C), the commissioner shall divide the project, if appropriate, after
applying the considerations set forth in subsection (1)(c) of this section to separate
the parts of the project that include funds of a public agency or that will be
occupied or used by a public agency from the parts of the project that do not
include funds of a public agency and that will not be occupied or used by a
public agency. If the commissioner divides the project, any part of the project
that does not include funds of a public agency and that will not be occupied or
used by a public agency is not subject to ORS 279C.800 to 279C.870.

(3)
If a project includes parts that are owned by a public agency and parts that
are owned by a private entity, the commissioner shall divide the project, if
appropriate, after applying the considerations set forth in subsections (1)(c)
and (2) of this section to separate the parts of the project that are public
works from the parts of the project that are not public works. If the
commissioner divides the project, parts of the project that are not public
works are not subject to ORS 279C.800 to 279C.870. [2007 c.764 §44]

279C.829
Agreement with other state to pay less than prevailing rate of wage. Notwithstanding
any other provision of law, a contracting agency may not enter into an
agreement with another state or a political subdivision or agency of another
state in which the contracting agency agrees that a contractor or subcontractor
may pay less than the prevailing rate of wage determined in accordance with ORS
279C.815 under the terms of a contract for public works to which the
contracting agency is a party or of which the contracting agency is a
beneficiary. [2009 c.322 §2]

279C.830
Provisions concerning prevailing rate of wage in specifications, contracts and
subcontracts; applicability of prevailing wage; bond. (1)(a) Except
as provided in paragraph (e) of this subsection, the specifications for every
contract for public works must contain a provision that states the existing
state prevailing rate of wage and, if applicable, the federal prevailing rate
of wage required under the Davis-Bacon Act (40 U.S.C. 3141 et seq.) that must
be paid to workers in each trade or occupation that the contractor or
subcontractor or other person who is a party to the contract uses in performing
all or part of the contract. If the prevailing rates of wage are available
electronically or are accessible on the Internet, the rates may be incorporated
into the specifications by referring to the electronically accessible or
Internet-accessible rates and by providing adequate information about how to
access the rates.

(b)
If a public agency under paragraph (a) of this subsection must include the
state and federal prevailing rates of wage in the specifications, the public
agency shall also require the contractor to pay the higher of the applicable
state or federal prevailing rate of wage to all workers on the public works.

(c)
Every contract and subcontract must provide that the workers must be paid not
less than the specified minimum hourly rate of wage in accordance with ORS
279C.838 and 279C.840.

(d)
If a public works project is subject both to ORS 279C.800 to 279C.870 and to
the Davis-Bacon Act, every contract and subcontract must provide that workers
on the public works must be paid not less than the higher of the applicable
state or federal prevailing rate of wage.

(e)
A public works project described in ORS 279C.800 (6)(a)(B) or (C) is subject to
the existing state prevailing rate of wage or, if applicable, the federal
prevailing rate of wage required under the Davis-Bacon Act that is in effect at
the time a public agency enters into an agreement with a private entity for the
project. After that time, the specifications for a contract for the public
works must include the applicable prevailing rate of wage.

(2)
The specifications for a contract for public works must provide that the
contractor and every subcontractor must have a public works bond filed with the
Construction Contractors Board before starting work on the project, unless
exempt under ORS 279C.836 (4), (7), (8) or (9). Every contract that a
contracting agency awards must require the contractor to:

(a)
Have a public works bond filed with the Construction Contractors Board before
starting work on the project, unless exempt under ORS 279C.836 (4), (7), (8) or
(9).

279C.835
Notifying commissioner of public works contract subject to prevailing wage;
payment of fee.
Public agencies shall notify the Commissioner of the Bureau of Labor and
Industries in writing, on a form prescribed by the commissioner, whenever a
contract subject to the provisions of ORS 279C.800 to 279C.870 has been
awarded. The notification shall be made within 30 days of the date that the
contract is awarded. The notification shall include payment of the fee required
under ORS 279C.825 and a copy of the disclosure of first-tier subcontractors
that was submitted under ORS 279C.370. [2003 c.794 §175; 2009 c.161 §3]

279C.836
Public works bond; rules. (1) Except as provided in subsection (4), (7), (8)
or (9) of this section, before starting work on a contract or subcontract for a
public works project, a contractor or subcontractor shall file with the
Construction Contractors Board a public works bond with a corporate surety
authorized to do business in this state in the amount of $30,000. The bond must
provide that the contractor or subcontractor will pay claims ordered by the
Bureau of Labor and Industries to workers performing labor upon public works
projects. The bond must be a continuing obligation, and the surety’s liability
for the aggregate of claims that may be payable from the bond may not exceed
the penal sum of the bond. The bond must remain in effect continuously until
depleted by claims paid under this section, unless the surety sooner cancels
the bond. The surety may cancel the bond by giving 30 days’ written notice to
the contractor or subcontractor, to the board and to the Bureau of Labor and
Industries. When the bond is canceled, the surety is relieved of further
liability for work performed on contracts entered into after the cancellation.
The cancellation does not limit the surety’s liability for work performed on
contracts entered into before the cancellation.

(2)
Before permitting a subcontractor to start work on a public works project, the
contractor shall verify that the subcontractor has filed a public works bond as
required under this section, has elected not to file a public works bond under
subsection (7) or (8) of this section or is exempt under subsection (4) or (9)
of this section.

(3)
A contractor or subcontractor is not required under this section to file a
separate public works bond for each public works project for which the
contractor or subcontractor has a contract.

(4)
A person that is not required under ORS 279C.800 to 279C.870 to pay prevailing
rates of wage on a public works project is not required to file a public works
bond under this section.

(5)
A public works bond required by this section is in addition to any other bond
the contractor or subcontractor is required to obtain.

(6)
The board may, by rule, require a contractor or subcontractor to obtain a new
public works bond if a surety pays a claim out of an existing public works
bond. The new bond must be in the amount of $30,000. The board may allow a
contractor or subcontractor to obtain, instead of a new bond, a certification
that the surety remains liable for the full penal sum of the existing bond,
notwithstanding payment by the surety on the claim.

(7)(a)
A disadvantaged, minority, women or emerging small business enterprise
certified under ORS 200.055 may, for up to four years after certification,
elect not to file a public works bond as required under subsection (1) this
section. If a business enterprise elects not to file a public works bond, the
business enterprise shall give the board written verification of the certification
and written notice that the business enterprise elects not to file the bond.

(b)
A business enterprise that elects not to file a public works bond under this
subsection shall notify the public agency for whose benefit the contract was
awarded or, if the business enterprise is a subcontractor, the contractor of
the election before starting work on a public works project. When a business
enterprise elects not to file a public works bond under this subsection, a
claim for unpaid wages may be made against the payment bond of the business
enterprise or, if the business enterprise is a subcontractor, the payment bond
of the contractor.

(c)
An election not to file a public works bond expires four years after the date
the business enterprise is certified. After an election has expired and before
starting or continuing work on a contract or subcontract for a public works
project, the business enterprise shall file a public works bond with the board
as required under subsection (1) of this section.

(8)
A contractor or subcontractor may elect not to file a public works bond as
required under subsection (1) of this section for any public works project for
which the contract price does not exceed $100,000.

(9)
In cases of emergency, or when the interest or property of the public agency
for whose benefit the contract was awarded probably would suffer material
injury by delay or other cause, the requirement for filing a public works bond
may be excused, if a declaration of the emergency is made in accordance with
rules adopted under ORS 279A.065.

(10)
The board shall make available on a searchable public website information
concerning public works bonds filed with the board, claims made on those bonds,
elections made by certified business enterprises not to file those bonds and
the expiration date of each election. The board may adopt rules necessary to
perform the duties required of the board by this section.

(11)
The Commissioner of the Bureau of Labor and Industries, with approval of the
board, shall adopt rules that establish language for public works bonds. [2005
c.360 §2; 2007 c.415 §1; 2007 c.764 §38]

279C.838
Applicability of state and federal rates of wage; determination of site of
project; determination of applicability of wage to transportation workers;
waiver.
When a public works project is subject to the Davis-Bacon Act (40 U.S.C. 3141
et seq.):

(1)
If the state prevailing rate of wage is higher than the federal prevailing rate
of wage, the contractor and every subcontractor on the project shall pay at
least the state prevailing rate of wage as determined under ORS 279C.815;

(2)
The Commissioner of the Bureau of Labor and Industries shall determine the site
of the project in a manner consistent with the term “site of the work” as that
term is used in federal law and in regulations adopted or guidelines issued in
accordance with the Davis-Bacon Act;

(3)
The commissioner shall determine in a manner that is consistent with federal
law and regulations adopted or guidelines issued in accordance with the
Davis-Bacon Act whether workers transporting materials and supplies to and from
the site of the project are subject to the Davis-Bacon Act and are entitled to
be paid the prevailing rate of wage;

(4)
Except as provided in subsection (1) of this section, the commissioner, in
consultation with the advisory committee appointed under ORS 279C.820, may
administer and enforce ORS 279C.800 to 279C.870 in a manner that is consistent
with federal law and regulations adopted or guidelines issued in accordance with
the Davis-Bacon Act. The commissioner may provide a waiver from a requirement
set forth in ORS 279C.800 to 279C.870 if necessary to achieve consistency with
the Davis-Bacon Act and to further the purposes of ORS 279C.805; and

(5)
ORS 279C.800 to 279C.870 do not apply to workers enrolled in skill training
programs that are certified by the United States Secretary of Transportation
under the Federal-Aid Highway Act (23 U.S.C. 113(c)). [2005 c.360 §7; 2007
c.844 §5]

279C.840
Payment of prevailing rate of wage; posting of rates and fringe benefit plan
provisions.
(1) The hourly rate of wage to be paid by any contractor or subcontractor to
workers upon all public works shall be not less than the prevailing rate of
wage for an hour’s work in the same trade or occupation in the locality where
the labor is performed. The obligation of a contractor or subcontractor to pay
the prevailing rate of wage may be discharged by making the payments in cash,
by the making of contributions of a type referred to in ORS 279C.800 (1)(a), or
by the assumption of an enforceable commitment to bear the costs of a plan or
program of a type referred to in ORS 279C.800 (1)(b), or any combination
thereof, where the aggregate of any such payments, contributions and costs is
not less than the prevailing rate of wage. The contractor or subcontractor
shall pay all wages due and owing to the contractor’s or subcontractor’s
workers upon public works on the regular payday established and maintained
under ORS 652.120.

(2)
After a contract for public works is executed with any contractor or work is
commenced upon any public works, the amount of the prevailing rate of wage is
not subject to attack in any legal proceeding by any contractor or
subcontractor in connection with that contract.

(3)
It is not a defense in any legal proceeding that the prevailing rate of wage is
less than the amount required to be in the specifications of a contract for
public works, or that there was an agreement between the employee and the
employer to work at less than the wage rates required to be paid under this
section.

(4)
Every contractor or subcontractor engaged on a project for which there is a
contract for a public works shall keep the prevailing rates of wage for that
project posted in a conspicuous and accessible place in or about the project.
The Commissioner of the Bureau of Labor and Industries shall furnish without
charge copies of the prevailing rates of wage to contractors and
subcontractors.

(5)
Every contractor or subcontractor engaged on a project for which there is a
contract for a public works to which the prevailing wage requirements apply
that also provides or contributes to a health and welfare plan or a pension
plan, or both, for the contractor or subcontractor’s employees on the project
shall post a notice describing the plan in a conspicuous and accessible place
in or about the project. The notice preferably shall be posted in the same
place as the notice required under subsection (4) of this section. In addition
to the description of the plan, the notice shall contain information on how and
where to make claims and where to obtain further information.

(6)(a)
Except as provided in paragraph (c) of this subsection, no person other than
the contractor or subcontractor may pay or contribute any portion of the
prevailing rate of wage paid by the contractor or subcontractor to workers
employed in the performance of a public works contract.

(b)
For the purpose of this subsection, the prevailing rate of wage is the
prevailing rate of wage specified in the contract.

(c)
This subsection is not intended to prohibit payments to a worker who is
enrolled in any government-subsidized training or retraining program.

(7)
A person may not take any action that circumvents the payment of the prevailing
rate of wage to workers employed on a public works contract, including, but not
limited to, reducing an employee’s regular rate of pay on any project not
subject to ORS 279C.800 to 279C.870 in a manner that has the effect of
offsetting the prevailing rate of wage on a public works project. [2003 c.794 §167;
2009 c.161 §4]

279C.845
Certified statements regarding payment of prevailing rates of wage; retainage. (1) The
contractor or the contractor’s surety and every subcontractor or the
subcontractor’s surety shall file certified statements with the public agency
in writing, on a form prescribed by the Commissioner of the Bureau of Labor and
Industries, certifying:

(a)
The hourly rate of wage paid each worker whom the contractor or the
subcontractor has employed upon the public works; and

(b)
That no worker employed upon the public works has been paid less than the
prevailing rate of wage or less than the minimum hourly rate of wage specified
in the contract.

(2)
The certified statement shall be verified by the oath of the contractor or the
contractor’s surety or subcontractor or the subcontractor’s surety that the
contractor or subcontractor has read the certified statement, that the
contractor or subcontractor knows the contents of the certified statement and
that to the contractor or subcontractor’s knowledge the certified statement is
true.

(3)
The certified statements shall set out accurately and completely the contractor’s
or subcontractor’s payroll records, including the name and address of each
worker, the worker’s correct classification, rate of pay, daily and weekly
number of hours worked and the gross wages the worker earned upon the public
works during each week identified in the certified statement.

(4)
The contractor or subcontractor shall deliver or mail each certified statement
required by subsection (1) of this section to the public agency. Certified
statements for each week during which the contractor or subcontractor employs a
worker upon the public works shall be submitted once a month, by the fifth
business day of the following month. Information submitted on certified
statements may be used only to ensure compliance with the provisions of ORS
279C.800 to 279C.870.

(5)
Each contractor or subcontractor shall preserve the certified statements for a
period of three years from the date of completion of the contract.

(6)
Certified statements received by a public agency are public records subject to
the provisions of ORS 192.410 to 192.505.

(7)
Notwithstanding ORS 279C.555 or 279C.570 (7), if a contractor is required to
file certified statements under this section, the public agency shall retain 25
percent of any amount earned by the contractor on the public works until the
contractor has filed with the public agency certified statements as required by
this section. The public agency shall pay the contractor the amount retained
under this subsection within 14 days after the contractor files the certified
statements as required by this section, regardless of whether a subcontractor
has failed to file certified statements as required by this section. The public
agency is not required to verify the truth of the contents of certified
statements filed by the contractor under this section.

(8)
Notwithstanding ORS 279C.555, the contractor shall retain 25 percent of any
amount earned by a first-tier subcontractor on a public works until the
subcontractor has filed with the public agency certified statements as required
by this section. The contractor shall verify that the first-tier subcontractor
has filed the certified statements before the contractor may pay the
subcontractor any amount retained under this subsection. The contractor shall
pay the first-tier subcontractor the amount retained under this subsection
within 14 days after the subcontractor files the certified statements as
required by this section. Neither the public agency nor the contractor is
required to verify the truth of the contents of certified statements filed by a
first-tier subcontractor under this section. [2003 c.794 §169; 2005 c.360 §11;
2009 c.7 §1]

279C.850
Inspection to determine whether prevailing rate of wage being paid; civil
action for failure to pay prevailing rate of wage or overtime. (1) At any
reasonable time the Commissioner of the Bureau of Labor and Industries may enter
the office or business establishment of any contractor or subcontractor
performing public works and gather facts and information necessary to determine
whether the prevailing rate of wage is actually being paid by such contractor
or subcontractor to workers upon public works.

(2)
Upon request by the commissioner, every contractor or subcontractor performing
work on public works shall make available to the commissioner for inspection
during normal business hours any payroll or other records in the possession or
under the control of the contractor or subcontractor that are deemed necessary
by the commissioner to determine whether the prevailing rate of wage is
actually being paid by such contractor or subcontractor to workers upon public
works. The commissioner’s request must be made a reasonable time in advance of
the inspection.

(3)
Notwithstanding ORS 192.410 to 192.505, any record obtained or made by the
commissioner under this section is not open to inspection by the public.

(4)
The commissioner may, without necessity of an assignment, initiate legal
proceedings against employers to enjoin future failures to pay required
prevailing rates of wage or overtime pay and to require the payment of
prevailing rates of wage or overtime pay due employees. The commissioner is
entitled to recover, in addition to other costs, such sum as the court or judge
may determine reasonable as attorney fees. If the commissioner does not prevail
in the action, the commissioner shall pay all costs and disbursements from the
Bureau of Labor and Industries Account. [2003 c.794 §170]

279C.855
Liability for violations. (1) A contractor or subcontractor or contractor’s
or subcontractor’s surety that violates the provisions of ORS 279C.840 is
liable to the workers affected in the amount of the workers’ unpaid minimum
wages, including all fringe benefits, and in an additional amount equal to the
unpaid wages as liquidated damages.

(2)
Actions to enforce liability to workers under subsection (1) of this section
may be brought as actions on contractors’ bonds as provided for in ORS
279C.610.

(3)
If a public agency fails to provide in the advertisement for bids, the request
for bids, the contract specifications, the accepted bid or elsewhere in the
contract documents that the contractor and any subcontractor must comply with
ORS 279C.840, the liability of the public agency for unpaid minimum wages, as
described in subsection (1) of this section, is joint and several with a
contractor or subcontractor that had notice of the requirement to comply with
ORS 279C.840.

(4)
If a public works project is subject to the Davis-Bacon Act, 40 U.S.C. 3141 et
seq., and a public agency fails to include the state and federal prevailing
rates of wage in the specifications for the contract for public works as
required under ORS 279C.830 (1)(a), or fails to provide in the contract that
workers on the public works must be paid not less than the higher of the
applicable state or federal prevailing rate of wage as required under ORS
279C.830 (1)(d), the public agency is liable to each affected worker for:

(a)
The worker’s unpaid minimum wages, including fringe benefits, in an amount that
equals, for each hour worked, the difference between the applicable higher rate
of wage and the lower rate of wage; and

(b)
An additional amount, equal to the amount of unpaid minimum wages due under
paragraph (a) of this subsection, as liquidated damages.

(5)
The Commissioner of the Bureau of Labor and Industries may enforce the
provisions of subsections (3) and (4) of this section by a civil action under
ORS 279C.850 (4), by a civil action on an assigned wage claim under ORS
652.330, or by an administrative proceeding on an assigned wage claim under ORS
652.332. [2003 c.794 §171; 2007 c.844 §6; 2011 c.265 §3]

279C.860
Ineligibility for public works contracts for failure to pay or post notice of
prevailing rates of wage; certified payroll reports to commissioner. (1) A
contractor or a subcontractor or a firm, corporation, partnership, limited
liability company or association in which the contractor or subcontractor has a
financial interest may not receive a contract or subcontract for public works
for a period of three years after the date on which the Commissioner of the
Bureau of Labor and Industries publishes the contractor’s or subcontractor’s
name on the list described in subsection (2) of this section. The commissioner
shall add a contractor’s or subcontractor’s name to the list after determining,
in accordance with ORS chapter 183, that:

(a)
The contractor or subcontractor has intentionally failed or refused to pay the
prevailing rate of wage to workers employed upon public works;

(b)
The subcontractor has failed to pay to the subcontractor’s employees amounts
required under ORS 279C.840 and the contractor has paid the amounts on the
subcontractor’s behalf;

(c)
The contractor or subcontractor has intentionally failed or refused to post the
prevailing rates of wage as required under ORS 279C.840 (4); or

(d)
The contractor or subcontractor has intentionally falsified information in the
certified statements the contractor or subcontractor submitted under ORS
279C.845.

(2)
The commissioner shall maintain a written list of the names of contractors and
subcontractors the commissioner determines are ineligible under this section
and the period of time for which the contractors and subcontractors are
ineligible. The commissioner shall publish the list, furnish a copy of the list
upon request and make the list available to contracting agencies.

(3)
If a contractor or subcontractor is a corporation or a limited liability
company, the provisions of this section apply to any corporate officer or agent
of the corporation or any member or manager of the limited liability company
who is responsible for failing or refusing to pay or post the prevailing rate
of wage, failing to pay to a subcontractor’s employees amounts required under
ORS 279C.840 that the contractor pays on the subcontractor’s behalf or
intentionally falsifying information in the certified statements the contractor
or subcontractor submits under ORS 279C.845.

(4)
For good cause shown, the commissioner may remove the name of a contractor or
subcontractor from the ineligible list.

(5)
When a prevailing rate of wage claim is filed or the commissioner receives
evidence indicating that a violation has occurred, a contractor or
subcontractor required to pay the prevailing rate of wage to workers employed
upon public works under ORS 279C.800 to 279C.870 shall send a certified copy of
the payroll for workers employed upon public works when the commissioner
requests the certified copy. [2003 c.794 §174; 2009 c.107 §1; 2013 c.239 §1]

279C.865
Civil penalties.
(1) In addition to any other penalty provided by law, the Commissioner of the
Bureau of Labor and Industries may assess a civil penalty not to exceed $5,000
for each violation of any provision of ORS 279C.800 to 279C.870 or any rule of
the commissioner adopted thereunder.

(2)
Civil penalties under this section shall be imposed as provided in ORS 183.745.

(3)
All moneys collected as penalties under this section shall be first applied
toward reimbursement of costs incurred in determining violations, conducting hearings
and assessing and collecting the penalties. The remainder, if any, of moneys
collected as penalties under this section shall be paid into the State Treasury
and credited to the General Fund and are available for general governmental
expenses. [2003 c.794 §177]

279C.870
Civil action to enforce payment of prevailing rates of wage. (1) The
Commissioner of the Bureau of Labor and Industries or any other person may
bring a civil action in any court of competent jurisdiction to require a public
agency under a public contract with a contractor to withhold twice the wages in
dispute if it is shown that the contractor or subcontractor on the contract has
intentionally failed or refused to pay the prevailing rate of wage to workers
employed on that contract and to require the contractor to pay the prevailing
rate of wage and any deficiencies that can be shown to exist because of
improper wage payments already made. In addition to other relief, the court may
also enjoin the contractor or subcontractor from committing future violations.
The contractor or subcontractor involved shall be named as a party in all civil
actions brought under this section. In addition to other costs, the court may
award the prevailing party reasonable attorney fees at the trial and on appeal.
However, attorney fees may not be awarded against the commissioner under this
section.

(2)
The court shall require any party, other than the commissioner, that brings a
civil action under this section to post a bond sufficient to cover the estimated
attorney fees and costs to the public agency and to the contractor or
subcontractor of any temporary restraining order, preliminary injunction or
permanent injunction awarded in the action, in the event that the party
bringing the action does not ultimately prevail.

(3)
In addition to any other relief, the court in a civil action brought under this
section may enjoin the public agency from contracting with the contractor or
subcontractor if the court finds that the commissioner would be entitled to
place the contractor or subcontractor on the ineligible list established under
ORS 279C.860. If the court issues such an injunction, the commissioner shall
place the contractor or subcontractor on the list for a period of three years,
subject to the provision of ORS 279C.860 (4). [2003 c.794 §176; 2007 c.764 §39;
2009 c.107 §2]